Douglas Aircraft Co. of Canada v. McConnell

Douglas Aircraft Co. of Canada v. McConnell
Collection
Supreme Court Judgments
Date
1979-06-28
Report
[1980] 1 SCR 245
Judges
Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Ontario
Subjects
Labour law
Decision Content
Supreme Court of Canada
Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245
Date: 1979-06-28
Douglas Aircraft Company of Canada Ltd. (Plaintiff) Appellant;
and
Andrew McConnell, Ray Hopkinson, Archie P. Wilson and AI Benjamin, on their own behalf and on behalf of all the other members of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1967 (Defendants) Respondents.
and
J.D. O’Shea, Q.C.
1978: November 7; 1979: June 28.
Present: Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Labour relations—Strike—”Sick-in” a strike—Grievance arbitration—Judicial review—Plant Chairman relieved of all production duties—Whether “employee”.
The four grievors, now respondents, were members of the union bargaining committee at appellant’s plant. The grievances were taken against the action of the appellant in discharging the grievors for their participation in a “sick-in”. Some of the appellant’s employees had been involved in a demonstration in support of the employees of the Artistic Woodworking Company, a dispute completely unrelated to Douglas Aircraft and Local 1967. Due to their involvement in the demonstration several Local 1967 members were late for work. One of them was Harbinson a member of the union bargaining committee and he during a meeting between management and that committee was called out to receive notice of his suspension for late arrival at work by reason of his participation in the Artistic dispute. During the meeting the respondent Wilson on hearing of Harbinson’s suspension indicated to the management personnel present: “If you discipline people for this, you are going to have troubles,” and thereupon he and the rest of the committee left the meeting. None of the other union committee members (who included the respondents Benjamin and McConnell) dissociated themselves from Wilson’s statement. That afternoon a number of employees were seen to leave earlier than the scheduled time. Wilson and Benjamin were seen speaking to employees after which the employees were seen to leave their work; Benjamin was heard to request some employees to stop work and leave. Subsequently Wilson was asked by a company officer if he was attempting to encourage a concerted illegal action and denied it. There were however rumours that union representatives were asking employees to book off sick the following day, October 2nd. The company called a meeting with the Union that day (October 2) and met with the bargaining committee on which Hopkinson had replaced the suspended Harbinson. On October 2 there was abnormal absenteeism at the plant with the heaviest concentration in the areas where the bargaining committee men worked. With the exception of Wilson, who by reason of his position had no production duties, all the bargaining committee were absent. The appellant responded by convening another meeting with union representatives and sending a notice of termination of employment to the respondent grievors because of the role played by them in the work interruption of October 2, 1973. The first grievance, that of Hill was heard by another arbitrator who reduced the penalty of discharge to four weeks suspension and ordered reinstatement. An application for judicial review was dismissed in Weekly Court (1974), 4 O.R. (2d) 521. The other four grievances were heard by J.D. O’Shea who dismissed them and an application to quash these four awards was granted in the Divisional Court (1976), 14 O.R. (2d) 1, 72 D.L.R. (3d) 453 whose decision was affirmed by the Ontario Court of Appeal (1977), 19 L.A.C. (2d) 237.
Held (Estey J. dissenting in part): The appeal should be allowed with respect to all the respondents.
Per Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.: As stated by Estey J. there was no error in the disposition by the arbitrator in relation to McConnell, Hopkinson and Benjamin whose discharge was a consequence of their participation in an illegal strike when they were members of the union bargaining committee appointed under the collective agreement. The appeal should also be dismissed with respect to the respondent Archie Wilson. The arbitrator correctly held that a distinction in wording between Article 8 of the agreement (dealing with the Plant Chairman) and Article 51 (dealing with the Union President) indicated on intention not to give the respective incumbents the same status. The latter is given “Leave of Absence” and becomes an employee of the Union, the former is only relieved of production duties for time spent on union duties albeit that in this case he was allowed full time for such union activities. Although Wilson’s activities were not a breach of duty to the Company because no such duty existed, they were misconduct which is another possible cause for which an employee may be dismissed and this in effect was what the arbitrator found. He mentioned “unlawfulness” and in light of ss. 63(1)(3), 67(1) of The Labour Relations Act, R.S.O. 1970, c. 232, Wilson could not claim to have been improperly disciplined for activities as Plant Chairman for which he was answerable only to the Union. By engaging in unlawful activity, he did something for which he could claim no immunity.
Per Estey J. dissenting in part: The case raised the difficult and fundamental question as to the scope for judicial review of a labour arbitration board’s decision. The board is not by the terms of The Labour Relations Act, R.S.O. 1970, c. 232 as amended protected from judicial review by certiorari or otherwise as is the Ontario Labour Relations Board established under that Act. The law of judicial review of inferior tribunals generally is applicable. The question was what limits to such judicial review are embodied by law. Adopting the reasoning of the Ontario Court of Appeal in R. v. Barber, [1968] 2 O.R. 245. The Court could proceed to determine the scope in the present case unhindered by any issue as to whether or not a specific question of law was referred to the statutory arbitrator. On a review of the authorities it is clear that all boards, are subject to the jurisdictional supervision of the Superior Court. A certiorari review of a statutory board free of a privative cloak brings with it the added ground of review for error on the face of the record. Such reviewable error exceeds a difference of opinion by the reviewing tribunal on an interpretative issue and falls short of an error resulting in an excess of its jurisdiction on the part of the board. Where the error in the award relates to the statute whose interpretation is required of the board in the course of determining the dispute the test is the same save that an error in law in statutory interpretation is not subject to the qualification that the assigned interpretation must be one which the words will not reasonably bear to permit review. Questions of admission and interpretation of evidence and procedure are all matters exclusively for the board as are all questions of fact. Unfairness, procedures contrary to natural justice, arbitrary conduct, refusal to discharge their function, fraud and bias in law are all matters that transcend the classification of error of law on the face of the record. They are jurisdictional and reviewable by certiorari or its equivalent with or without a privative clause.
In the present appeal as to the respondent Wilson, the company’s obligation to pay him salary, as Plant Chairman, is analogous to a fringe benefit to the members of the bargaining unit to be provided by the Company under the agreement. Wilson was not an employee of the Company in that he was chosen by the Union in accordance with the terms of the Agreement. The Company could not discharge him from that office.
To hold that Wilson had any duty toward the Company for which he was accountable in law would create a fundamental conflict of interest in his position. Such a concept is hostile to the basic principle of the rights of labour. The arbitrator’s decision is susceptible to attack on two grounds. First, there was in the award an indication of a possible grievance or action at law against the Union rather than grounds for a grievance discharge against Wilson personally. There was also some confusion as to the nature of Wilson’s duty to the members of the bargaining unit, owing to the terminology of Article 8. In interpreting Article 8, the learned arbitrator assigned to its terms a meaning which the words would not reasonably bear. Hence on the above principles the award is quashed.
As to the respondents Benjamin, McConnell and Hopkinson there were no errors of law or reviewable questions justifying a judicial review. A court in judicial review is not however a court sitting on an appeal and a court in the latter position might well have responded differently to the awards.
[Re Federation of Telephone Workers of British Columbia and British Columbia Telephone Co. (1971), 23 D.L.R. (3d) 18; Kent v. Elstob, [1802] 3 East 18; British Westinghouse Electric and Manufacturing Company, Limited v. Underground Electric Railways Company of London, Limited, [1912] A.C. 673; Howe Sound Company v. International Union of Mine, Mill & Smelter Workers (Canada), Local 663, [1962] S.C.R. 318; Port Arthur Shipbuilding Company v. Arthurs et al., [1969] S.C.R. 85; Hodgkinson v. Fernie and Another (1857), 3 C.B. (N.S.) 189; In the Matter of an Arbitration Between King and Duveen and Others, [1913] 2 K.B. 32; R. v. Barber et al., [1968] 2 O.R. 245; Government of Kelantan v. Duff Development Company Limited, [1923] A.C. 395; Re International Nickel Co. of Canada Ltd. and Rivando, [1956] O.R. 379; F.R. Absalom, Limited v. Great Western (London) Garden Village Society Limited, [1933] A.C. 592; Rex v. Nat. Bell Liquors Ltd., [1922] 2 A.C. 128; Rex v. Northumberland Compensation Tribunal, [1952] 1 K.B. 338; Re The Ontario Labour Relations Board et al., [1957] O.R. 316 referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario affirming without reasons, a judgment of the Divisional Court[1] setting aside the the arbitrator’s award[2] in the matter of employee grievances alleging unjust discharge.
G. Finlayson, Q.C., and T. Heintzman, for the appellant.
L.A. MacLean, Q.C., for the respondents.
The judgment of Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ. was delivered by
PIGEON J.—I have had the privilege of reading the reasons for judgment prepared for delivery by my brother Estey and I agree with him that there was no error in the dispositions made by the arbitrator in relation to respondents McConnell, Hopkinson and Benjamin whose discharge was a consequence of their participation in an illegal strike when they were members of the Union Bargaining Committee appointed under the collective agreement between the appellant Company and the Union.
With respect to respondent Archie Wilson I find myself unable to agree with Mr. Justice Estey’s view that the arbitrator was in error and, in the circumstances, I find it necessary to quote the essential part of the award on Wilson’s grievance in which the arbitrator sets forth his findings and reasons for dismissing it. This is as follows:*
Having considered all the evidence and the very able representations of the parties I have no hesitation in finding that a great number of employees acted in concert on October 2nd and engaged in a work interruption known as a “sick-in” as a means of protesting the company’s action in disciplining employees who reported late for work because they were engaged in picketing Artistic Woodwork Company in support of the strike at that plant. This penalty had been announced on Friday, September 28th and I find that the absences on October 2nd did not result from a spontaneous reaction by employees but rather was a planned response to the company’s actions.
When assessing the grievor’s statements which were made on September 28th and October 1st and 2nd it would be improper to attempt to interpret them in isolation. The true meaning of what the grievor said must be determined in light of all the surrounding events of which the grievor had knowledge. For these reasons I am unable to find that his statements were as innocuous as counsel for the union suggested. In this regard I am unable to agree with the findings of Mr. Gorsky in the Hill grievance award. Although the grievor’s failure to testify cannot be construed as an admission of guilt in view of the fact that the onus rests on the company to establish just cause however in the absence of any explanation from the grievor, I must attach meaning to the words used by Mr. Wilson which would make his statements consistent with the events that took place. The statements made by the grievor are not only consistent with the unlawfulness of the acts complained of but to treat his statements as innocent remarks in light of all the surrounding circumstances would be naive to the extreme. Mr. Wilson was acknowledged to be a “hard nosed” union leader who was not adverse to the use of tough and at times abusive language. By repeating, without explanation, that there would be trouble if the company disciplined the Artistic Woodwork picketers who were late for work on September 26th and also by criticising the employees who reported for work on October 2nd the grievor clearly demonstrated, not only his support for the sick-in but his leadership in causing the unlawful activities. His participation was not merely passive. I find that the evidence clearly demonstrates his leadership in causing employees to contravene the collective agreement. In this regard the evidence in this case is distinguishable from the evidence in the Sunar Industries Case referred to above.
Although nothing can be inferred from the fact that the grievor did not testify, when considered in isolation, the failure of the grievor to testify permits me to draw inferences from the evidence before me, if that evidence is unexplained or qualified by evidence adduced through union witnesses. In the instant case I find that the company’s evidence was sufficiently strong and substantial so as to cast a duty of explanation on the grievor to rebut the conclusions and inferences which the company has suggested should be drawn from that evidence. I further find that the evidence established that the grievor played a role in the work interruption as alleged in the company’s reply to the grievance. That role, as established by the evidence, was more than a passive role. Usually a union official, by reason of his office, does not owe a higher duty to the employer than any other employee. Accordingly, if a union official is merely a passive participant in a work stoppage that is led by others, he normally should bear no greater responsibility than other employees who are merely passive participants. Again there is usually no responsibility on a union official to act as an arm of management. Such are not the facts in the instant case however. Rather than being a passive participant, I am satisfied that the grievor’s role was one of active leadership. As a union leader, his position of leadership within the bargaining unit made his actions in leading the sick-in more authoritative and therefore more culpable. Although it is obvious from Mr. Wilson’s remarks to the general foreman on October 2nd concerning certain employees who had reported for work that day that the sick-in was not as successful as he had wished it to be, it was apparently not the fault of any efforts the grievor had made to cause the sick-in to occur. In addition, the collective agreement in this matter is distinguishable from the collective agreement with which the Court was concerned in the British Columbia Telephone Company case cited above. In that case the Court found that there was no implied obligation on an employee who holds union office which is greater than on a rank and file employee. In the instant case, the parties have addressed themselves to the functions and responsibilities of the plant chairman. The plant chairman has no production functions to perform in common with other bargaining unit employees. His full time duties are directed to the administering of the collective agreement and in this he is responsible to the manager, labour relations, pursuant to the provisions of Article 8 of the collective agreement. Since he is paid by the company solely for administering the collective agreement as plant chairman, he must assume more responsibility for its proper and lawful administration than if he were not paid for this function. The company is entitled to look to the bargaining committee and particularly its chairman to deal with matters arising under the collective agreement. The bargaining committee as a whole and its chairman in particular frustrated the company’s efforts to enforce the provisions of the collective agreement on October 2nd and indeed the bargaining committee appeared to support the threat of trouble made by Mr. Wilson on February 28th* since no member of the bargaining committee disassociated himself from Mr. Wilson’s remarks but on the contrary participated in the sick-in thereby enforcing the threat of trouble made by Mr. Wilson.
In view of the provisions of Article 8, even if Mr. Wilson’s participation in a work stoppage were merely passive his culpability would be greater than other employees. The extent of the benefits provided by the collective agreement for the position of any union office is usually a reliable guide to the degree of responsibility which flows to that position under the collective agreement. For this reason, if for no other, Mr. Wilson must bear the greatest responsibility for what occurred on October 2nd since he failed to demonstrate that he had actively attempted to enforce the provisions of the collective agreement at the direction of the manager of labour relations and to cause the members of the bargaining unit to do likewise. In this respect Mr. Kirkby was in a different position than Mr. Wilson. Mr. Kirkby was on a full time leave of absence from the bargaining unit for the duration of his term of office as president of the local union. He was not paid by the company. During his leave of absence he owed no duty to the company as an employee. His only duty was to the union. In this regard Mr. Kirkby’s duty to the company was similar to that of Mr. Fairchild, the international representative. If Mr. Kirkby was guilty of unlawful conduct the remedy would be within the jurisdiction of the Courts or by way of an application for leave to prosecute under the Ontario Labour Relations Act., in my view.
The first question I will consider arises out of the latter part of the last quoted paragraph. Was the arbitrator correct in holding that, although appointed by the Union as full time Plant Chairman of the Union Bargaining Committee and thereby relieved of any production duties, Wilson nevertheless remained an employee of the Company subject to dismissal for cause? In this respect consideration is to be given to the following provisions of the Collective Agreement which, among others, were quoted by the arbitrator at the beginning of the award.
UNION REPRESENTATION
Bargaining Committee
8. The Company acknowledges the right of the Union to select a Bargaining Committee of five (5) members of whom one (1) shall be the Chairman and one (1) the Skilled Trades Committeeman. The Company will recognize and bargain with the said committee on any matter properly arising from time to time during the continuance of the Agreement. The President, or in his absence the Vice-President, of the Local, will be ex officio members of the Committee if not elected thereto.
The Plant Chairman of the Union Bargaining Committee shall be known as the full time Plant Chairman. He shall be on a full time basis for the purpose of administering the Agreement in co-operation with the regular Stewards and Committeemen. He shall be allowed free access to the Company’s operations in the performance of his duties. He will be provided with an office and office facilities including desk, chair, telephone and filing cabinet, and he will be supplied with copies of Company forms concerning starts, lay-offs, discharges, releases, re-calls and changes in job classification. The Company will continue the present practice of providing Company forms involving transfers of employees.
The Vice-Chairman of the Union Bargaining Committee, or because of his unavailability, another designated representative of the Union Plant Committee shall substitute for the full time Plant Chairman should he be absent from the Plant.
The full time Plant Chairman or his substitute shall receive the rate of pay equal to the highest rate in the Bargaining Unit, and will be limited to forty (40) hours per week at straight time. He shall be responsible to the Manager, Labour Relations or his nominee.
When the Plant Chairman ceases to hold office, he shall be returned, consistent with his seniority, to the classification and to the department in which he was employed at the time of his selection as Plant Chairman, or to a job classification embracing comparable job duties to that which he held prior to his selection.
Zone Committeemen
9. The Company agrees that Union representation in each of the thirteen (13) geographical zones of the Bargaining Unit shall consist of one Zone Committeeman and two Shop Stewards. Zone Committeemen and Shop Stewards shall be elected or otherwise appointed from the employees in the geographical zone they are to represent. In addition, there will be one Skilled Trade Zone in the Bargaining Unit, represented by one Zone Committeeman and two Shop Stewards…
Stewards
10. If the number of employees in a geographical zone exceeds two hundred (200) in number, then the Union may add one (1) Shop Steward, and one (1) additional Shop Steward for each additional one hundred (100) employees added to the Zone. One of the said Stewards shall be known as the Chief Steward. The Chief Stew- ard shall be allowed four hours each Friday afternoon, on Company time, in order to consult with his fellow Stewards on matters related to the administration of the Agreement…
Performance of Regular Duties—Union Business
12. The Union recognizes and agrees that Stewards, Zone Committeemen and Members of the Bargaining Committee have regular duties to perform in connection with their employment and that only such time as is reasonably necessary will be consumed by such persons during working hours in order to attend to the business of administering the Agreement…
Union Business
13. Before leaving his regular duties on behalf of the Company to investigate or process a grievance or otherwise attend to the business of administering the Agreement, the Steward or Zone Committeeman must obtain the permission of his Foreman to do so, and before permission is granted, may be required to complete a form supplied by the Foreman indicating the nature of his business and the time anticipated to transact such business, it being understood that, if permission is granted and the Foreman’s permission will not be unreasonably withheld, the time in excess of such may, at the Company’s discretion, and after notice to the Union, be disallowed.
In accordance with this understanding, except as provided in Clause 23, the Company will compensate such employees for the time spent during their working hours in dealing with employee grievances at their regular rate of pay. The Company reserves the right to withhold payment if the Steward or Zone Committeeman does not conform to the accepted practice when dealing with grievances or if an unreasonable or abnormal amount of time is consumed in dealing with grievances. Any dispute arising from the above may be the subject of the Grievance Procedure.
I must also quote the provisions of the Collective Agreement under which, as the arbitrator noted, the local union president had been granted “Leave of Absence”. This is Article 51 as follows:
Union Leave of Absence
51. (a) An employee who is elected or appointed to a full time office with the International Union or Local 1967, will be granted Leave of Absence upon written application of the International Union or the senior officer of Local 1967 as the case may be. Such Leave of Absence shall be, upon request, extended and it is understood that the Company will receive written notice from the International Union or Local 1967 respectively to this effect.
(b) The International Union or Local 1967 agrees also to advise the Company in writing once annually of the names of those Douglas employees who are engaged in full time duties with the Union.
(c) Upon similar application, leave will be granted for periods up to ten (10) days to permit members of the Bargaining Unit to attend conventions, educational seminars or conferences called by the International Union or other Labour Councils. It is understood that not more than fifteen (15) members will be absent at one time under this clause and that applications for leave will be presented in writing as soon as possible—in any case not less than five (5) working days—in order that the Company may provide replacements, if necessary.
(d) It is understood that requests which exceed the numbers quoted above may be granted providing the individuals can be spared from production.
(e) If an employee returns to the Bargaining Unit from a full time office with the International Union, the return shall be to the former Job Classification or a Job Classification embracing comparable job duties to that which he held prior to leave of absence, providing such return does not result in a lay-off or bumping of an employee holding greater seniority.
(f) When an employee returns to the Bargaining Unit from a full time office with Local 1967, he shall be returned consistent with his seniority, to the classification and to the department in which he was employed at the time of his selection to such office, or to a Job Classification embracing comparable job duties to that which he held prior to his selection.
It appears to me that the arbitrator correctly held that the difference in wording between Article 8 and Article 51 indicated an intention not to give the Plant Chairman the same status as the Union President. The latter is given “Leave of Absence” and becomes an employee of the Union. The Plant Chairman is only relieved of production duties just as other committee members and stewards are for the time they are allowed to spend on “Union business” in “administering the Agreement” on “Company time” (See Art. 10, 12, 13). It is clear that stewards and committee members do not cease to be employees for the time devoted to such activities and it does not appear to me that it is otherwise for the Plant Chairman just because he is allowed full time for such activities rather than part time only. Where it was intended that union officials should cease to be “on Company time” it was clearly provided for “leave of absence”. This was not done for the Plant Chairman and, in this connection I would draw attention to the following provision in Appendix III, Letters of Intent, No 34. “Re: Union Business Practice”.
(13) In the event the Plant Chairman requires the presence of a zone committeeman and/or a Steward in his office, he will contact the Manager of Labour Relations or his designee, who will make the necessary arrangements as soon as possible.
The Chairman will have the responsibility to ensure that persons will not congregate nor spend excessive time in his office when they are given permission to be there.
It is argued that the duties of the Plant Chairman are to the Union, not to the Company and reference is made to the judgment in Re Federation of Telephone Workers of British Columbia and British Columbia Telephone Co.[3] on which the Divisional Court relied. I do not disagree with that proposition and I accept that the Company could not complain of a breach of duty to it by Wilson because none existed. However, breach of duty, is not the only possible cause for which an employee may be dismissed, there is also misconduct. Although he did not use the word, this is clearly what the arbitrator found when he said:
The statements made by the grievor are not only consistent with the unlawfulness of the acts complained of but to treat his statements as innocent remarks in light of all the surrounding circumstances would be naive to the extreme… His participation was not merely passive. I find that the evidence clearly demonstrates his leadership in causing employees to contravene the collective agreement.
Concerning the “unlawfulness” mentioned by the arbitrator the following provisions of The Labour Relations Act (R.S.O. 1970, c. 232) should be noted.
63. (1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.
…
(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.
…
67. (1) No person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.
In the light of these provisions, Wilson could not claim to have been improperly disciplined for activities as Plant Chairman for which he was answerable only to the Union. Those activities properly embraced only the “administering of the Agreement”. The instigation of a strike contrary to the provisions of the Agreement was completely outside the range of activities which could be considered as within the scope of the duties of the Plant Chairman. By engaging in this unlawful activity Wilson did something for which he could claim no immunity just as would be the case for any public official committing an illegal act while on public duty.
I do not find it necessary to comment on what the arbitrator said he would hold “if Mr. Wilson’s participation in a work stoppage were merely passive”. There is a clear finding of “active leadership” which cannot be challenged and, in my view, fully supports the conclusion reached by the arbitrator both as respects the cause of the disciplinary discharge and the severity of the penalty. What the situation would be otherwise is immaterial. I wish to make it clear that I am purposely refraining from any reference to decisions respecting the situation of labour union officials with respect to injunctions or cease and desist orders, what I am presently saying is intended to be limited to a consideration of the situation disclosed in the present case. In the result, I would allow the appeal with respect to all the respondents, set aside the judgments of the Courts below and restore the awards of the arbitrator. The appellant is entitled to its costs throughout against the respondent grievors.
The following reasons were delivered by
ESTEY J. (dissenting in part)—An arbitration resulting from an illegal work stoppage at the appellant’s plant in Malton comes to us by way of the Divisional Court of the High Court of Ontario whose judgment setting aside the arbitrator’s award was confirmed without reasons by the Ontario Court of Appeal. The arbitrator by agreement amongst counsel heard four grievance arbitrations consecutively and issued four separate awards although cross‑references, particularly with reference to the facts, appear in these awards.
The four grievors, now respondents, were four of five members of the union bargaining committee at the appellant’s plant. The fifth member of that committee, one William Hill, was the subject of another arbitration and I will refer to this later. In each case, the grievance is taken against the action of the appellant in discharging the grievors by reason of their participation in a “sick-in.” The facts can be briefly stated. On Wednesday, September 26, 1973 some of the appellant’s employees were involved in a demonstration in support of the employees of the Artistic Woodworking Company, which dispute was completely unrelated to any dealing between Douglas Aircraft and Local 1967. Due to their involvement in the Artistic dispute, five members of Local 1967, including one Harbinson, a member of the bargaining committee for Local 1967, reported late for work. On September 28, 1973, management representatives met with the union bargaining committee to deal with a grievance not connected with the issues now arising. In the course of the meeting, Harbinson was called out to meet his supervisor for the purpose of receiving notice of his suspension for late arrival at work by reason of participation in the Artistic dispute. During this meeting, the respondent Wilson, on hearing of Harbinson’s suspension, stated to the management personnel present: “If you discipline people for this, you are going to have troubles,” and thereupon Mr. Wilson and the rest of the committee left the meeting. The respondents Benjamin and McConnell did not dissociate themselves from Wilson’s statement, nor did the other remaining member of the committee, Mr. Hill. On the afternoon of September 28, a number of employees were seen to leave the appellant’s premises earlier than the scheduled termination of their work. The respondent Wilson and the respondent Benjamin were seen speaking to employees of the appellant in the plant after which the employees were seen to leave their work. The respondent Benjamin was heard to request some employees to stop work and leave. What ensued is summarized by J.D. O’Shea, Q.C., Arbitrator, in his award concerning the grievance of the respondent Wilson:
Mr. Nash contacted the guard house and requested that Mr. Wilson be asked to come to Mr. Birch’s office. When Wilson arrived, accompanied by Mr. Naples, a union steward, Mr. Birch asked if Mr. Wilson was attempting to encourage a concerted illegal action. This was denied by Mr. Wilson. The following Monday, October 1st, the plant was in full operation. However there were many rumours that union representatives were asking employees to book off sick the following day, October 2nd. The company called a meeting with the bargaining committee at 3.00 p.m. on October 1st. In attendance at this meeting were Messrs. Wilson, Benjamin, Hill, McConnell and Mr. Hopkinson (who replaced Mr. Harbinson as a member of the bargaining committee for the period of Mr. Harbinson’s suspension). Mr. Kirkby, the president of the local union was also in attendance. Kirkby was on a full time leave of absence for the term of his office as president. He was paid by the union and had no production duties to perform.
...
On October 2nd, there was an abnormal amount of absenteeism in the plant. The heaviest concentration of absenteeism was in the areas where the bargaining committeemen worked. With the exception of Mr. Wilson, all the bargaining committee were absent from work on October 2nd. By reason of his position, Mr. Wilson had no production duties on October 2nd.
The daily absences at the plant averaged 180 employees or less. However on October 2nd there were a total of 525 absences. The evidence also established that while three or four union officers might be absent on any given day, on October 2nd 66 officers or officials of the union were absent from work.
At about 8:20 a.m. on October 2nd the general foreman met Mr. Wilson in the plant. The general foreman expressed surprise at seeing Mr. Wilson in the plant at that time. Mr. Wilson replied that he was only there to see what was going on. Mr. Wilson then pointed to a couple of drivematic machine operators and said, “Look at the bastards, they can’t even look me straight in the face”. He then pointed to another employee and said, “That little Portuguese bastard was saying yesterday that we should all be out in the street, but he comes in to work today”. Mr. Wilson then made inquiries as to the number of operators and maintenance men who were to work.
At about 8:50 a.m. on October 2nd, Mr. Wilson telephoned the company and advised that the regular step 3 grievance meeting which was scheduled that day would have to be cancelled since all the bargaining committee and all the executive board were absent from work. Only one out of fourteen zone committeemen and two out of some forty-nine stewards were at work on October 2nd.
An employee also testified that Mr. Benjamin had approached him on October 1st and asked him and two other employees not to come into work the following day but to phone in and report that they were sick. The employee further testified that Mr. Benjamin had approached him and two other employees around 2:30 p.m. on Friday, September 28th and asked them “to get the hell out otherwise it would be rough on the guys already out”. The witness further testified that he had seen a number of employees punching out between 2:00 p.m. and 2:30 p.m. on Friday. After this time no work was accomplished because a lot of employees were standing around in small groups discussing the matter. The witness testified that he did not punch out as requested because he did not want to lose wages.
The appellant responded to these actions on the 2nd of October by convening a meeting with union representatives and sending a notice to each of the respondent grievors which stated in part as follows:
Further to our discussion of Tuesday, October 2nd, 1973 this will confirm that your employment has been terminated for the role you played in the work interruption of October 2nd, 1973. The Company response included other actions such as the suspension of the six-man executive committee of the union for varying periods from 5 to 23 days; the suspension of zone committeemen for 3 days; and the issuance to 47 union stewards of a final warning and to the rank and file employees, a warning.
Apparently the “sick-in” was the continuation or repetition of earlier episodes which had culminated in the incorporation into the collective agreement current in 1973 of an exchange of correspondence between the appellant and the international union to which the local, the bargaining agent of the grievors, belonged. These letters included one from the Staff Vice-President - Personnel of the Appellant’s parent company, McDonnell Douglas Corporation, to the Vice-President and Director, Aerospace Department, United Automobile Workers, dated November 12, 1971 which, after reciting (a) that the author of the letter regarded work-to-rule, slowdowns, etc. as violations of the law and (b) that, due to the competitive nature of the business in which the appellant is engaged, namely aircraft manufacturing, concerted work stoppages operated to the detriment of the Company and the job security of the employees, stated:
The Company, therefore, is prepared to take appropriate action against any individual or groups of individuals who lead, direct, participate or engage in such concerted activities either as a violation of the no-strike provisions of our agreement or under the applicable provisions of the Labour Relations Act, or both.
The letter continued:
This letter is directed to the attention of those appropriate personnel in your organization and represented by your organization, so all concerned will be aware that such violations will be infractions, on which the management intends to invoke immediate discipline.
The International Union replied and its letter is incorporated into the collective agreement as well. It reads in part:
...we will not condone any slowdowns, work stoppages or ill