HomeMy WebLinkAbout1983-0142.Gagnon et al.84-01-20.:
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TE‘EPHONEl nrs/swosee
142183. X1/83
145183 152183 149/83 155/&3
X0/83 157183
158/83
Between:
Before:
l
IN THE AlATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
For the Grievor:
For the Employer:
Hearing:
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Messrs. Gagnon, Kollin,
Mairs, Mansell, Marasco, Marchand, Smith, Taylor
and Walcott) Grievors
- And -
The Crown in Right of Ontario
,(Ministry of Correctional
Serviqes) Employer
G. Brent Vice Chairman
M. watters Member
N. Cazzola Member
E. Shilton Lennon, Counsel
Cavalluzzo, Hayes & Lennon
E.J. Anthony
Regional Personnel Administrator Ministry of Correctional Services
November 8, 19:3
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DECISION
This matter arises out of sevarral grievances filed by correctional
officers employed at the Windsor Ja1.l vho were suspended for varying
periods of time for participating “in a concerted vi thdrawal of services
from the jail on September 21, lY82”. At the commencement of the
, _
hearing, counsel for the grievers informed us that the Taylor grievance
(lj7/83) was being withdrawn. Accordingly, that matter will not be
dealt with in this award.. Tne partIes were able to asee on most of the
relevant facts; they are set out below as they appeared in the agreed
statement of facts:
00 September 21, 1982, the government tabled Bill 179 a” Act
in the Legislature.
Public sector employees were aware for some time before that
date that It would be tabled, and that it would take away the
right to collective bargaloing for a period of time from
public sector employees.
OPSEU, of which the grievers are members, organ1 zed a
demonstration at Queen’s Park for September 21, 1982 to
protest the legislation.
Attached isan OPSEU leaflet (Ex. I) distributed to members
prior to September 21, 1982 which reflects the nature and
purpose of the protest.
The Executive of the Windspr local called a union meeting on
Friday, September 17, 1Y82 to df scuss the protest. Most of
the grievers attended that meeting. At the meeting the local
president, Tim Souchereau, informed the membership of the
protest against the legislation being orpnized by OPSEU. it
was suggested that employees who wished to protest should
call in sick on September 21, 19112. A vote was taken on
vhether or not to take September %I off, and majority voted
in favour. Employees were advised that whether they wished
to do so or not wi16 an individual decision.
All the grlevors, with the exceptton of Sheila Smith, called
in sick prior to their scheduled shift on September 21, 1982.
The phone was answered by either the duty officer or the
acting shift supervisor who were both members of the
bargaining unit. No comment was made on their calling in
sick.
The management of the Windsor Jail had received a copy of the
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memo (Ex. 1) a copy of which is attached, warning them of a
possible job action on September 21, and advising them oi how
to proceed. Hdwever, they had received some unofficial
information that .the job action had been called off. The
employer did not learn of the mass sick protest until 0630
hours on SePtember 21 when Mr. 8. Bennett, C.O. 2, (the
Acting Shift Supervisor) called Deputy Superintendent J. Ross
to advise him that the entire day shift had booked off sick.
None of the grievers were too sick to come to work o?
September 21, 1982. Those grievers who called in sick ih
fact called in sick as suggested at the union meeting to
protest the fact that the impending legislation would take
away their right to collective bargainingand impose wage
controls on them.,
The griever Sheila Smith, called the institution prior to her
scheduled shift on September 21, 1982 and advised duty
officer (a member of the bargaining unit) that she would not
be’i n. She did not indicate that she “as sick. She “as not
asked for a reason.
The griever Sheila Smith, has a seniority date of October 9,
1977. She has no prior disc.iplinary record with the
exception of a letter of reprimand for participatinginan ’
unlawful work stoppage in 1979. She “as given a 7-day
suspension. Attached is her letter of discipline. (Ex. 3)
The griever, Gor.don Fiai,rs, is a part-time employee.who has
been employed on the unclassified staff since June.8, 1981.
Prior to that he “as employed on the classified staff as a
Correctjonal Officer from October 30, 1978 to May 23, 1981.
He has no prior disciplinary record with the exception,of a
letter of reprimand for participating in an unlawful work
stoppage in 1979~. He “as given a suspension for six shifts
(2 weeks). Attached is his letter of discipline. (Ex. 4)
The griever, Vince Marasco, has a seniority date of May 26,
1980. .He has no prior .disciplinary recor.d. He received a 5-
day suspension. Attached is hi& letter of discipline. (Ex.
5)
The griever, Maurice Marchand, has a seniority date o,f
October 6, 1980. He has no prior disciplinary record. He
received a S-day suspension. Attached is his letter of
discipline. (Ex. 6)
The griever, Bonnie Mansell, has a seniority date of June .9,
1980. She .has no prior disciplinary record. She recei’ved a
five-day suspension. Attached is her letter’ of discipline.
(EL ‘7)
The griever, Kim Killlo, has a seniority date of January 1,
1980. She has no prior disciplinary record. She’ received a
.
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fi\e-dsy suspension. Attached Is her letter of discipline.
(Ex. 8)
Tht griever, David Gagnon, has a seniority date of June 1,
IYBI. He has no prior disciplinary record. He received a 5-
day suspensf on. Attached is his letter of discipline. (EL
9)
The griever, Oennis Walcott, has a seniority date of
September 25, 1978. He has no prior disciplinary record with
the exception of a letter of reprimsnd for participating in
an illegal work stoppage in 1979. He received a IO-day
suspension. Attached is his letter of discipline. (Ex. 10)
The illegal work stoppage in 1979 was a 3-day province-wide
walkout of employees in the Ministry of Correctional
Services. ~11 full-time Correctional Officers in the
bargaining unit at the Windsor Jail participated in that
wslkout. Host full-time Correctional Officers ncross the
province participated In the walkout and consequently
received letters of reprimand identical to those referred to
above.
The employer imposed a ten-day rather than s five-day
suspension on grfevor Walcott solely on the basis of his
participation in the 1979 strike.
The only other employee in the Ministry of Correctional
Services who was disciplined for participating in the protest
of September 21, 19tl2 was Kevin Wilson, president of the
Toronto local of GPSEIJ Correctional Officers. Attached is
his letter of discipline. His grievance was heard by the
Grievance Settlement Hoard and decision rendered on June 29,
1983 (Hoard file 168 to 173/83).
Only grievers Smith and Narchand attended the demonstration
in Toronto. The others remsinned in Windsor.
At previous stages of grievance procedure and Ministry
investigation by a Ministry inspector all grievers except
Sheila Smith maIntaincd the positlon that they had been too
111 to come to work. Some of the grievers were afraid that
they would be dischar&d if they admitted that they had been
involved in the protest.
INote: The statment of fact as presented at the hearing
has been amended to reflect the withdrawal of the Taylor
grievance, and to include the exhi~i t numbers given to the
various documents and the additional facts agreed to at the
hearing. Where the statement refers to documents which sre
attached, no alteration was made in the sratement; however,
the documents are not attached to this award.1
In addition to the agreed facts, viva vote evidence was presented
by the Employer. That evidence shows that the Windsor Jail is a maximum
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security facility with capacity of 92 male and 7 female inmate.s. Four
main types of prisoners are held there., They are:
1. Remand Pri wners.
2. Immigration Cases being held for deporation hearings.
3. Prisoners who have been sentenced and are awaiting the
expiry of their appeal periods before transfer to federal
or provinc,ial institutions.
4. prisoners sentenced to jail terms of 90 days or less.
Mr. Vi llene we, the Superintendent of the jail, testified that the
prisoner population in the jail is one of the most difficult in the
PKOViIlCe. He referred to the jail’s greater suicide risks than average,
its greater than average percentage of heavy offenders (murder, etc.),
its volatile type of prisoners, and its greater number of physical
confrontations than are found in the average jail. Through a series of
exhibits (Exs. 12 to 17) it was,established, among other things, what
the objectives of the institution are, that the Correctional Officers
were peace officers while on duty, and that they were obliged to report
for duty. , ‘.
on September 21, 1982 there were twenty-five bargaining unit
employees scheduled to work. ,Four reported for duty.~. Mr. Villeneuve
testified, that he had been notified that there was a protest scheduled *
for Toronto and that staff plight be requesting the.day off to attend.
He said that he was prepared to deal with the requests if any came
forward but none were received. When he was notified that the day shift
was not going to report for work he ordered the midnight shift to stay
behind, and made alternate arrangements to cover the shift with
management personnel. He also called in all off-duty sergeants,
.
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assigned the office manager to a shift, and used the Deputy
Superintendent as a floater, in order to ensure that there was the
minimum number of staff required to operate the institution. Everybody
reported for work the next day. None of the officers who booked off
were paid for the day.
Ml-. Vi lleneuve testified that his initial reaction to the
withdrawal of services was to discharge the staff members involved;
however, he decided to take advice before acting. He ultimately decided
to discipline everyone who was involved in the walkout by giving them
suspensions and to consider them individually insofar as their records
were concerned. All of the employees who had participated in the 197Y
strike were to get ten day suspensions, andall of the others five day
suspensl o*s. He examined the records of each of the employees to
determine which of them had letters of reprimand on file from the 1979
ilIe@ strike. Approximately twenty employees were disciplined. There
were letters of reprimand (Exs. IY, 20, 6 21) given to grievers Smith,
Walcott and Hairs reerding the 197Y action.
nr. Walcott was given a ten day suspension. Mr. Hairs was given a
suspension for six shifts because he is a casual employee, and that was
the closest thing to a five day suspension that could be imposed, given
the way 1 n which casual employees are scheduled. Mr. Vi lleneuve said
that he treated Mr. Mairs as an employee with no letter of reprimand on
his file because when he had become a casual employee his previous file
was closed. Ms. Smith was suspended for seven days because she was the
only one of the employees who was forthright about the reason for her
absence. Mr. Villeneuve testified that he considered that if a person
were open and honest then he should take that into consideration.
All of the employees who were disciplined received their
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disciplinary notices and served their suspensions in January. Mr.
Villeneuve testified that he did this because he did not want to take
any action whrch would cause the employees to lose money over the
Christmas period, and because he wanted to minimize the effect on the
Institution.
The Employer also led evidence from Mr. Victor Crew, the Director
of Personnel in the Ministry of Correctional Services. He said that
this walkout was considered to be a ‘very serious matter because a number
of the staff involved had also been involved in the lY79 walkout, and
the Employer had made it clear then that such action would not be
tolerated agaln. He testified that he was aware of the Wilson incident
referred to in the agreed~ statement o’f facts. It was hi.6 .evidence that I
this was a more serious matter than the Wilson case because here the
majority of the staff had participated, whereas the Wilson case involved
only one person; and because this action involved correctional officers,
whereas Mr. Wilson was a rehabilitation officer without security
re sponsi bi li tie S. It was Mr. Crew’s opinion that the withdrawal of the
services of a majority of correctional officers .would constitute a
security and safety risk, while the absence of a single rehabilitation
officer would not present the same risk. We agree.
There were three issues raised in the arguments., They were: (1)
whether there wa,s no proper ground for discipline because the
participation in a concerted withdrawal of services is part of the
poll tical process and as such is protected by the Canadian Charter of
Rights and Freedoms; (21 whether the withdrawal of services under the
circumstances was provoked by the introduction of legislation which was
subsequently found to have infringed rights guaranteed under the
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Canadian t:harter of Kights and Freedoms and so should attract either no .-- -
or a lesssr penalty; and (3) whether the penalty is excessive in the
event that the other two points of argument are answered in the
negative.
I
For the purpose of this argument counsel for the grievers was
prepared to assume that 6. 27 of the Crown Employees Collective
Bargaining Act (hereinafter referred to as the Act) was valid. That -
section prohibits all strikes and lock-outs in the Ontario Public
Service to which the Act applies. Counsel for the grievers submitted
that the concerted withdrawal of services was for the purpose of
participating in a political protest, and insofar as s. 27 of the Act
purports to prohibit such activity it is an infringement of the freedom
of association suaranteed the grievers in the Canadian Charter of Rights
and Freedoms (hereinafter referred to as the Charter). -
Counsel for the grievers referred us to the decisions of the
Ontario Labour Relations Board and of the Ontario Divisional Court which
dealt with the ‘National Day of Protest”on October 14, 1976. Both of
those decisions predated the Charter and so dealt with the issue of
freedom of association in a different context than that which faces us
here. It was submitted on behalf of the grievers that the ‘National Day
of Protest”decisions would be different if decided in the context Of
the guarantee of freedom of association in tne Charter, and so it will
be useful for us to analyze the majority decisions in those cases,
together vi th the decisions handed down by the Divisional Court in”
Service Employees’ International Union, Local 204 and Llroadway MaoOr ---
Nursing Home, Christian Lahour Association of Canada and The Ontario --
Labour Kelatians board; Re The Durhaw Board of Education and Ontario -- .-- ---
.
”
:
: *,
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Secondary School Teachers’ Federation,. District 17 and Education --
Relations Commission; g Ontario Public Service Employees Union and The ---
Attorney General of Ontario (198,3) unreported (hereinafter referred to
ai ~Broadway Manor).
In Domglas Ltd. and United Glass and Ceramic Workers of North -- -- --
America, et al. (19761, 2 Can LRBR 394 (OLRB) the Ontario Labour --
Relations Board was dealing with a ‘pre-Charter” freedom of association
argument in the context of the 1976 ‘National Day of Protest”. That
protest was similar in all major respects to the basic situation in this
case. The employees there were, undertaking concerted action~in the
L
nature of a political protest aimed at the,federal government’s anti-
inflation legislation. The action of Xhe federal.government would have
an impact on collective bargaining but the actions of the.employees were
not undertaken in the context of collective bargaining and they were not
aimed against the employer. In the case before us thqgrievors were
protestlng the provincial government’s introduction of Bill 179, which
Subsequently was enacted as the Inflation Restraint Act, 1982, .S.O.
1982, C. 55. For the’purpose of this argument concerted action was not
taken against the employer but rather can be regarded as having been
taken against the government as a political protest.~
In the Domglas decision the Ontario Labour Relations Board found
that the definition of “strike” in the Ontario Labour Relations Act .was -
broad enougn to encompass a work stoppage which was not intended to put
economic pressure on an employer. At page 399 of the decision it
specifiCally dealt with the argument that conduct relating to
differences between employees and government could not be a strike In
the following passage:
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Underlying this argument is the assumption
that conduct relating to differences between
employees and government Is unrelated to employer-
employee relations. We do not regard this
assumption as correct. One only has to apply this
assumption to the facts of this application to see
the fallacy. The work stoppage, if carried out,
would affect the employer-employee relationship
since it is evident that the provisions in the
collective agreement prohibiting work stoppages
would be breached. Secticln 42 of the Labour
Relations Act, however, expressly states that
collective agreements shall be binding up””
employers, trade union, and employees. If the
respondents’ argument were adopted, the result
would be that a fundamental obligation contained in
a valid collective agreement made under the Labour
Relations Act would not be protected by the labour
board remedial power, so ,long as 1 t could be
established that a work stoppage was not being used
for collective bar@ining purposes.
The labour Kelations Board also went on to state, at page 400, that
to restrict the definition of “strike” in the Ontario Labour Relations
Act so as to exclude political protests would “create substantial -
uncertainty in its application” and ‘would also add an extra element of
uncertainty that could only be disruptive of employer-employee
relations”. It concluded. also at page 400, that *‘strike” was broad
enough to include political protests and stated that the “‘overriding
purpose of the [Labour Kelatioos) Act is to regulate all aspects of the
relationship between the employer and the employees represented by the
union of their choice”. Consistent with this purpose one finds
instances where restrictions are placed on conduct and where specific
protections are to be found.
In the case before us It was not argued that the definition of
strike did not include concerted activity which was not directed against
the employer. In any event, we would simply point out that 6. t(o) of
the Act defines “strike ” as follows:
‘strike” inlcudes a cessation of work, J refusal to
work or to continue to work by employees in
combination or in concert or in accordance with a
common understanding, or a slow-down or other
concerted activity on the part of employees
designed to ,restrict or interfere with’ work or
services.
We find that this definition is the same inall material respectsas
the definition of “strike” with which the Ontario Labour Relations Board
was dealing In Domglas, and so in the absence of any argument to the
contrary, we accept that the reasoning of the Labour Relations Board in
respect of the meaning of strike is neither challenged nor affected by
the Char te r. We therefore start with the proposition that the Act does
not limit its prohibition against strikes to strikes which are against
the employer. t
The Domglas decision then dealt with the issue of whether the
prohibition of politically motivated strikes was beyond the legislative
competence of the Province of Ontario. In dealing with this question
the Labour Kelations Board relied on the judgement of Chief Justice Duff
in Re Alberta Legislation, L19381 2 D.L.R. 81 (S.C.C.). As we -
understand that case, it was perhaps the most significant judicial
expression of the protection of basic freedom6.i” a .democratic system
which still accepted the notion of parliamentary supremacy. Chief
Justice Duff’s decision indicated that there were areas where the
actions of legislatures so hobbled the functioning ?f parliamentary
institutions that they were inconsistent with the very institutions
provided by the British North America Act and so ~were beyond the -
competence of the provincial .legl sla tures.
At page 401”the Lbbour Relations Board said:
There is no doubt in our mind that judicial
interpretation has restricted the power of the
provinces to interfere with basic poItica1
freedoms. As Duff, C.J.C. stated in e Alberta
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L-eglslatlon, at page 108:
Any attempt to abrogate this right of
public debate or to suppress the
traditional forms of the exercise of the
right (in public meeting and through the
press) would, in our opinion, be
incompetent to the Legislatures of the
provi rices,, or to the Legislature of any
one of the Provinces, as repugnant to
provisions of the H.N.A. Act, by which
the Parliament of Canada is established
as the legislative org.+” of the people of
Canada under the Crown, and Dominion
legislation enacted pursuant to the
legjslatlve authorj ty given by those
provi si ons. The subject mattter of such
legislation could not be described as a
provincial matter purely; as in substance
exclusively a matter of property and
civil rights within the Province, of a
matter private or local within the
province .
On the other hand, not every restriction of freedom
of expression and association can he regarded as an
interference with basic political freedom. The
point vss clearly recognized by Chief Justice Duff,
who went on to say, at p. 101):
Some degree of regulation of newspapers
everyoody would concede to the Provinces.
Indeed, there is a very wide field in
which the Provinces undoubtedly are
invested with legislstive authority over
newspapers; but the llmi t, in our
opi ni O”, is reached when the legislation
effects such a curtailment of the
exercise of the right of public
discussion as substantially to interfere
with the working of the parliamentary
institutions of Canada as contemplated by
the provisions of the B.N.A. AC t and the --- statutes of the Dominion of Canada. such
a limt tacion is necessary, in out-
0pini0Il. “in order”, to adapt the words
quoted above from the judgement in Bank
of Toronto 5 Lambe -to a f ford scope”
or the uorkinT)such parliamentary
lnsti tutions. In tni s regian of
constitutional practice, it is not
permitted to ii Provincirl Legislature to
do indirectlv whdt cannot be done
directly (Grea’t West Saddlcry Co. v. The --- --- -g, 58 D.L.K. at p. 6).
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One need only look to the tabour Kelations Act
itself to see the soundness of such an approach.
Section 56 of the Act restricts certain forms of
employer expression -- coercion, intimidation,
threats, promises or undue influence -- that might
interfere with the ability ,of employees to
organize. Even though freedom of expresslo” is
restricted, no one would suggest that this
prohi bition is beyond the author1 ty of the
provincial Legislature, since not only is there a
good industrial relations justification for such a
restriction but it is also difficult to
characterize this kind of expression as a basic
political right. Freedom of association, moreover,
is curtaired by the statutory recognition of union
security clauses found in S. 38. Contractual union
security clauses are now allowed to prevail over an
individual’s desire not to join or support a tra~de
union, except ins the limited situation where that
desire is based upon a sincere religious conviction
or belief. There is, of course,,a good industrial
relations justification for permitting this
restriction upon freedom of. the individual to join
or not to join an association and, conversely, the
freedom being asserted is not regarded as being a
basic political right.
The Labour Relations Board then went on to state that, even though.
there was a sound industrial relations justification for limiting the
right to strike, the right to strike was not a basic political right
that should be exempt from legislative control. It came to that
c’onclusion by way of stating<that the strike iri Canada had been a
collective bargaining sanction and not a form of political expression.
While recognizing that the strike on the ‘National Day of Protest” was
one which was politically motivated, the Labour Relations Board
concluded, at page 402, that “the labour rel~ations justification for the
wider interpretation of the strike prohibition outweighs the political
justification for a more narrow interpretation’:
That decision was upheld by the Ontario Divisional Court in K
United Glass & Ceramic Workers of North America et al. and Domglas Ltd. -- -__ --- -
et al. (1978), 19 O.R.(2d) 353. -- The court agreed that the definition of
‘. ;
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I
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strike wSS broad enough to encompass situtations where work’stoppages
were not directed aginst the employer but against the government 8s a
meanS of political protest. Speaking for the majority of the court, Mr.
Justice Henry said, at pages 360 and 361 of the decision:
I prefer not to rely on the narrow ground that a
withdrawal of labour for political purposes is not
a ‘traditional form’ of the exercise of public
debate. The forms in which freedom of expression
may be exercised are not to be regarded as closed.
New modes of communicating a Citizen’s point of
view to Government, or of exercising the right to
engage in political activity or of prSCtiSi”g Doe’?3
W1igi”” may emerge with changing times, and so
long as they do not contravene a valid law or
unreasonably abroete or impair the rights of other
citizens, a citizen is free to adopt them.
A freedom is fundamentally an absence of
restraint. nny cl tireo is enti tied to the
fundamental freedoms of religion, speech, assembly,
association and the press, except to the extent
that he is restrajned by law. That reasonable
restraint may be imposed upon these freedoms
without denying the citizen his fundamerltal rights
is well recognized. Apart from common law
restraints rebvlati”~: the relations between citizen
and ci ti zen, statutory limitations are imposed by
federal statutes (principally the Criminal Code).
provincial regulatory statutes and municipal by-
1SWS. These range all the way from the criminal
law against sedition, riots, and obscenity to
purely local matters .?lch as municipal planning and
ZOniTlg, regulation of the use of highways and
streets, and anti-litter laws. The’se restraints
are generally to protect Some public interest, and
less usually to protect the prjvate interest of any
cl tizen.
In terms of freedom of speech a” expression I”
relation to ~owrnment policy where a statute of a
Province or municipality restrains these freedoms
unreasonably, the Courts are alert to protect the
freedom concerned, either by declaring the
offending law ultra vires or inapplicable: . . . . . . . . --
Where such restraints are sought to be
1 mposed, it adds little to the objection to say
that the activity that falls within the restraint
has a ‘political’ purpose. The test by which the
fate of the impugned laws :ls to be governed IS
.
. . - 15 -
rather the effect of the restraint on the free
working of the democratic process.~
Dealing with the specifics, and after having observed, among other
things, that that strike for political purposes directly interrupted the
employer’s operation and interfered with his right to carry on his
business freely, Henry, J. said at page 363:
The freedom of political speech and expression
that is to be-safeguarded is, in a parliamentary
democracy, the freedom of all citizens to engage in
public discussion and debate (including actions
such as peaceable demonstrations) as an essential
ingredient in the free working of parliamentary
institutions. In such a democratic system, it is
the cut and thrust of dialogue, the offering or
withdrawing of political support with the ultimate
objective of influencing the outcome at the polls,
that is the cornerstone of the democratic system.
What is sought, in the final analysis, is to
asce’rtain the free will of the people through the
institutions from time to time created by society
for that purpose.
Freedom of speech and expression connotes the
articulation of a point of view, but the withdrawal
from the community of any of the factors of
prpduction, whether capital, labour or resources,
as a result of concerted (not individual) action,
in my opinion, is not an aspect of the fundamental
freedoms of speech and expression, association,
tXligi”Tl, or the press. Nor is it a freedom
standing by itself. When carried to a sufficient
degree, such concerfed action must result in
holding the local or national society hostage to
Secure the aims of the participants. That Is not
freedom of speech; it is coercion that, so far from
ensurng the free working of parliamentary
institutions, must ultimately impair it.
The statutory limitation on work stoppage for
political purposes does not, therefore, constitute
a limitation on any of the fundamental freedoms
mentioned. So far as I can assess it, it cannot be
said to ‘substantially interfere with the working
of the parliamentary institutions of Canada’, 80 as
to place it beyond the purview of the provincial
Legi sla ture.
Without for the moment considering the decision of the Divisiona
Court In the Broadway Manor case, it may be appropriate to consider some
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of the implicat,lons of the Domglas decision. In the first place, the
Divisional Court recognized that an action may be considered an aspect
of freedom of association or freedom of expression, despite the fact
that there may have been no history of such usage in Canada. W1 th that
we agree. It would seem unreasonable to lfmit the interpretation of the
fundamental freedoms to the forms which the exercise of those freedoms
have taken in the past. The Court then went on to find chat the proper
test, when concerned with the question of whether a legislature had
acted unreasonably in restraining freedom of speech, association, etc.,
is what is the effect which the restraint has on tne functioning of the
democratic process. In the final analysis the court found that the
restraint on all work stoppages during the life of a collective
agreement did not have the effect of interfering with parliamentary
instit”ti”ns.
It was put to us that the Charter has changed the basic framework
of analysis and that we are facing a Domglas situation here wl th the
Charter in place. The provisions of the Charter with which we must deal
are set out below:
Whereas Canada is foLnded upon principles that
recognize the supremacy of Cod and the rule of law:
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms setout in it
subject only to such reasonable lid ts prescribed
by law as can be demonstrably justified f n a free
and democratic society.
2. Everyone has the following fundamental
freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and
other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
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We agree that the analysis which must take place since the Charter
came into effect is fundamentally different from that which took place
in the Domglas case. The Charter recognizes and guarantees certain
fundamental freedoms. Those fundamental freedoms do not exist by
legislative fiat but ratpr are recognized as being the very base on
which our free parliamentary democracy is built. We believe that the
proper analysis under the Charter must start with.the proposition that a
fundamental freedom, as defined in s. 2, must be taken to be absolute
unless it can be shown that limits of the sort specified in S. 1 have
been imposed by law. We~consider that this was the approach taken by
the Division Court in the Broadway __ Manor case (supra), and we accept it
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as correct.
In the situation before us, then, we are beingasked to consider
whether there has bee? a limitation. placed on the grievers’ freedom of
association, and one would imagine freedom of expression, which went
beyond “such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society”. For ‘the purposes of this
analysis we will,accept,~ as the Divisional Court in Broadway Manor
appeared to accept, that at common law workers were free- to strike in
that there was no restraint which .prevented them from striking. We also
accept that a freedom is not synonymous with a right and that the
Charter does not guarantee the right to strike (see the-judgment of
Galligan, J. at pages 27 - 31).
In the course of the analysis of the Charter arguments it was
recognized that the thrust of the Labour Relations Act was to create a -
regime for regulating relations between employer and employees organized
for the purpose of collective bargaining. The le gi. sla ti on creates
rights where none existed before and p1ace.s limitations on free’dom of
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associa tlon, freedom of expression, etc. At pages 33 and 34 of his
judgxuzot Calli~n, J. said:
In Ontario the very comprehensive provisions
of the Labour Relations Act and similar statutes
such as the Boards and Teachers Negotiations Act --_ regulate the conduct of the collective bargaining
process. It can be said in a broad sense, I
suppose, that they infringe upon certain aspects of
freedom of association in that they regulate the
certification process, the bargaining process and
whether or not and under what circumstances a
strike may take place. The infringement of that
freedom however fs compensated fur by the granting
of ri@ts which the freedom of association does not
contain. And they impose legal obligations upon
employers which freedom of association does not
I mpose.
In a similar vein Smith, J. said at pasts 28 and 2Y of his judgnznt:
It is important to note that the freedom to
associate freely, to bargain and to wf thdraw
services were not conferred by statute. They were
developed under a dynamic of their own. The
various statutes dealing with labour relations
merely served to recognize and regulate them in the
interest of order and industrial peace. It is
perhaps therefore more accurate to speak of
‘freedom’ which inheres the very nature of mdn as a
social being, rather than of ‘right’ which may be
thought of as something conferred.
These regulatory statutory provisjons clearly
abridged the inherent,and acknowledged freedom to
associate but their main characteristic was to
confirm j ts existence and hence protect it, as a
freedom or right which had obviously not been fully
protected but nevertheless existed. The Canadian
Bill of Rights made a valiant attempt to induce its
acceptance but only a Charter could give it the
status all agree i L deserved in a truly free and
democratic society.
It should also be kept in mind that in the course of the analysis
the Divisional Court wa.s not asked to consider that the restrictions
placed on freedom of associacio~~ by the labour le@slatioo was repugnant
under the Charter. The Broadway Manor case, insofar as deals 4th the
Charter, concerns itself only with the restrictions on freedom,of
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association which accompanied the Inflation Restraint Act. The issue -
before us concerns the restriction on freedom of association which is
contained in labour legislation. Moreover, the issue addressed is not
the validity of the prohibition of strikes generally but just the
validity of the prohibition as it relates to politically motivated
action which is not action taken a@inst the employer.
Despite the differences in the issues, Smith, J. may nqvertheless
have indicated the question which we must ask when at page 38 of his
judgment he said:
While all forms of limitation of freedom of
association are offensive, at least to those
directly affected, the word ‘offensive’ must have
been meant to refer to what is acceptable or
necessary in a broad sense, in a free and
democratic society.
It can be said that the quid pro quo for restricting freedom of
association and expression, insofar as strikes are concerned, was the
creation of other means of settling disputes, for example, arbitration.
Naturally, if the dispute is not one between employer .and employees then
these means of settlement will be irrelevant. From the employer’s point
of view, a concerted withdrawal of services by employees who are
contractually bound to provide them is as disruptive if ,motivated by a
political issue as it is if motivated by an industrial relations issue
peculiar to the employment situation. A poll tically motivated
withdrawal may be even more disruptive since the cause of the walkout is
one which is beyond the employer’s control to remedy. In some
situations it may be difficult to isolate the reason for the employees’
actions, and we agree with the Ontario Labour Relations Board in Domglas
that this would ‘bdd an extra element of uncertainty that could only be
disruptive of employer-employee relations*‘. The desire to exercise a
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freedom by protesting government action comes into direct conflict with
a valid private obligation owed to an employer not to engage in the
concerted withdrawal of services. We consider that the labour relations
justifications set out by the Ontario Labour Relations Board in Domglas
are persuasive and that they could in themselves justify the limitation
on freedom of association without offending the Charter or democratic
institutions.
Given that it is assumed for these purposes that the legislative
prohibition apinst strikes 1s a limitation on freedom of association
that is reasonable and can “be demonstrably justified in a free and
democratic society”, then we must assume that the limitation is probably
justified on the basis of balancing the public interest in keeping
certain services, such as correctional institutions, operative at all
times. In recognizing a valid public interest of that sort, one must
also recognize that the public interest does not disappear when
employees wish to engage in a concerted withdrawal of services for
poli tica purposes. In the case of a concerted withdrawal of services
for political purposes the employer’s operation is disrupxd and the
employer is left without the means to resolve the dispute. The reason
for the existence of the original restriction on freedom of association
is still present during a political dispute, and it is, if anything,
buttressed by the fact that the employer, as employer, is powerless to
effect a settlement and thereby act to protect the public interest.
The freedom of the employees to strike for political purposes must
therefore be balanced against the interest of the public, and in our
viev it is not unreasonable to place the public interest ahead of that
freedom. There fore, we would conclude that if the restriction on
freedom of association is valid in relation to the general prohibition
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a@inst strikes, then the restriction on such freedom in connection with
a strike for political purposes is similarly capable of belng
“demonstrably justified in a free and democratic society”.
It is therefore our conclusion that the employer is not prevented
from taking disciplinary action against the employees who engaged in the
prohibited conduct.
II -
An alternative argument was put to us that the disciplinary action
should be viewed in the context of employer provocation. This argument
depends on the identity of the employer with the government of Ontario.
It was said that since the employees were protesting legislation that
sought to place unacceptable limitations on freedom of association and
which was found to be in violation of the Charter that the employees
were provoked into taking the action.
we accept, as a general propostion, $a t i f an employer provokes an
employee into breaching his obligation, then that is a factor which
should be taken into account in assessing the appropriateness of
disciplinary action. We also accept that provocation, if foupd, should
be considered regardless of the penalty imposed.
We further accept that everyo.ne in Canada is free to
demonstrate, either alone or in association with others, his or her
displeasure with any level of government. We also can sympathize with
the reaction of public servants to any proposed limitations on their
rights and freedoms. Their freedom to express their disagreement with
government policy in concert with others would be as valid if the
legislation had been fully upheld by the court in the Broadway Manor
ca.se as It is when the legislation has been fouid to violate the
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Charter in some respects.
clearly, I f the protest i a viewed as a poll rice1 protest and not
one directed against the employer, then there 1 s no provocation because
the employer is not an actor. In a case such as this, there may be some
justification for considering the line between the employer and the
government of Ontario to be somewhat “fuzzy’: However, when considering
the provocation argument we cannot ignore the official Union advice as
set out in the bulletin distributed to its members (EL 1). The Union
was not counselling an illegal work stoppage; it was not reacting in an
intemperate fashion. It advised its members to get leave, either with
or without pay, to attend the demonstration in Toronto. This particular
local decided not to follow the advlce of its Union. It decided, on its
own, to engage in an illegal work stoppage. Therefore, even without
ignoring the causal connection between the government’s action and the
work stoppage, we should not ignore the action which was being
counselled as being an appropriate response by the Union. In such a
situation, where a work stoppage is not generally “provoked” by the
government’s actions is there any basis for saying that it was
specifically “provoked” in the Windsor jail? We consider that the
isolated nature of this work action weakens any inclination vhlch we
would have to give effect to the provocation argument.
In any event, there is no legal basis for holding that the employer
is the same as the Government of Ontario, and we believe that this would
precluue us from giving effect to the employer provocation argument as
it was put to us.
III -
As noted earlier in this award we agree that there are valid
factual distinction,s to be made between this case and the Wilson case
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(GSB File 168/83 - 173/83). As the panel which heard that case pointed
out, there was no concerted withdrawal of servicesand the efficient
operation of the institution was not threatened by the absence of Mr.
WI Ison. These differences were essentially the same as those which Mr.
Crew identi,fied to us. We accept them. In this case there was an
admitted concerted withdrawal of services, and the action did
substantially disrupt the operation of the Windsor Jail. Under the
circumstances of this case, the actions of the employees who booked off,
including the grievers, can be construed as constituting a potential
threat to the safety and security of the prisoners, the staff on duty,
and the community at large.
At pages 733 and 734 of Professor Palmer’s Collective Agreement
Arbitration I;?. Canada, second edition, the fol.lowing summary is given of
the position with,regard to discipline in illegal strike situations:
It is clear that. employees who participate in
an illegal strike may be disciplined for their
actions. Indeed various arbitrators have suggested
that any degree of participat1o.n in an unlawful
strike is pri facie just cause for discharge. An
often-quoted award states:
1n the case at bar, it is established
that the grievers were on an unlawful
strike and.that some of them picketed as
well in the furtherance thereof, so that
if this were the ordinary run of case it
would only remain to decide as a legal
question whether such conduct is just
cause for ,discharge. If this were all
that there was in the present case, the
board could see no answer (especi.ally
having regard to the marginal seniority
of most of the grievers) to the :
company’s position. As an abstract
proposition, if participation in an
unlawful strike and picketing is not
cause for discharge there can hardly be
any dereliction of duty to an employer
in respert of service that would be.
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Another recent case states:
The authori ties establish the following
principles which sre of guidance to this
board in the grfevances presently being
considered:
1. Anyone participating in an
unlawful strike leaves himself
open to discipline, and anyone
who causes an unlavful strike
or actively s”stains an
unlawful strfke, does so at the
risk of his job.
2. The e q ployer’s right to
discipline in the circumstances
of an illegnl strike is
circumscribed by a requirement
for equality of treatment to
all employees involved in the
strike, and that discipline
must, to the extent of the
employer’s knowledge of the
facts, be applied in an even-
handed manner.
3. It is proper for a board of
arbitration to take into
consideration any mitigating
circumstances in determining
the culpability and therefore
the appropriate discipline to
be imposed.
4. An employee who holds union
offlce does not have =nY
special duty to the employer
and cannot there fore be
disciplined for his failure to
take active steps to prevent
other employees from breaching
the agreement. Because of his
greater knowledge and higher
degree of responsi bi 11 ty,
however, he may invite a
greater penalty for active
breach of the collective
agreement than would a rank-
and-file employee.
INOTE: The passages quoted by Professor Palmer
are from Re Aeroclde Dispensers (1965), 16 LAC 57
(Laskin) and He Liquid Cnrbon~(19777, 16 LAC(Zd)
284 (KennedyJin that order.1
We accept the proposition that the participation in an illegal
strike, and that is what this was, I a an extremely serious matter and
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has been invariably regarded as such by arbitrators. Therefore, a8 a
general matter, we cannot consider that in this case the Employer’s
response was beyond the reasonable range of possible disciplinary
response 8.
It was argued that we should c”“trast this disciplinary action to
that which followe,d the 1979 province-wide walkout and to the
response take” ,by Loyalist College towards its employees (See Loyalist
college and OPSEU, (1983) unreported (Brent), where the College did not
allege that there had been a” illegal strike and simply warned employees
for beingabsent without leave and did not pay them for the time that
they were absent attending the protest). With respect to the latter
MS@, the~Employ@r here has the grounds for disciplining the employees
for taking part in a concerted withdrawal of services, and we cannot
fault it for having chosen to do SO. With respect to the former matter,
the 1979 strike spanned three days, involved the majority of the
Correct:.o”al Officers in the province, and discipline was based on a”
agreement between the Employer and the Union. Even if we were t” accept
the proposition that the 1979 action was considerably m”r@ serious than
this, it is difficult for ,us to draw conclusions as to the
appropri.rten@ss or inappropriateness of this discipli”ary,?ctio” from
that situation where the discipline was based on a” agreement of the
parties. In any @v@nt, having concluded that the disciplinary response
in this case fell within the bounds of the possible reasonable responses
and having concluded that the offence was a serious matter, we would b@
reluctant to alter the penalty simply because the Employer had, by
agreement with the Union, responded differently ““ce in the past.
We .believe that it was appropriate for the Employer to consider the
pr@se”c@ or absence of the letter of reprimand concerning participation
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in the 1Y79 strike as a factor which would influence the perlalty. In
this connection, we find that Hr. Hairs was properly considered to be
employ@@ without such a letter on his file since his changed status
resulted in his previous personnel file being closed. Based on the
evidence of Mr. Villeneuve regarding the way in which Mr. Mairs’s
penalty was assessed we do not consider that Mr. Hairs was treated
differently than any other employee without a letter on his active file.
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We further find that the Employer acted reasonably in considering
that Ms. Smith’s honesty should be recognized in any assessment of
penalty. There fore, despite the fact that she had a letter of
reprimand on her file regarding the 1979 incident, we do not consider
that the recognition of a special factor in her case should lead to the
conclusion that anyone else with a letter of reprimand on file was
discrimlnatedagai”st because he or she received a longer suspension
than Ms. Smith. We would like to point. out, however, that her letter of
disipline (Ex. 3) does state on page 2 that she “reported ill”when all
of the evidence before us indicates that she “ever said that she was
sick. Indeed, the Employer’s position is based on the fact that Ms.
Smith was the only person who ?ever claimed to be ill. Therefore, in
fairness to Ms. Sml th and for the sake of the accuracy of her record,
that passage should be amended to reflect the facts, and we direct the
Employer to do so forthwith.
We can see no basis for varying the penalties imposed on the other
employees who participated In this action and who did not participate in
the 1979 action.
Accord1 “gly , for all of the reasons set out herein, the grievances
are di smi ssed. The only order for relief which we feel compelled to
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make is that which we have specified in relation to the disciplinary
letter on Ms. Smith’s file (Ex. 3) which we consider, In light of the
Employer’s own position, to contain an inaccuracy.
DATED AT LOHDOl8, OEMRIO TEIS 20th DAY OF January , 1984.
G. Brent Vice Chairman
M. Watters Member
Ii. Cazzola Member