[1980] OLRB Rep. December 1751
1993-80-U; 1994-80-U Maitland Redi-Mix Concrete Products Limited, Applicant, v. Leonard Schultz, Matt Elliott and Teamsters Local Union 879, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondents.
BEFORE: R.A. Furness, Vice-Chairman.
APPEARANCES: James E. Bowden and Roland Kaufman for the applicant; Ken Petryshen, Len Shultz and Matt Elliot for the respondents.
DECISION OF THE BOARD; December 15, 1980
The applicant has filed two identical applications for relief under section 123 and section 82 of The Labour Relations Act.
None of the parties called evidence before the Board. The facts before the Board were in the form of the following agreed statement of facts:
A number of statements were made by the respondents Schultz and Elliott that picket lines would be set up at the Union Carbide Canada Limited plant at Highway 9 just south of Walkerton on the east side of the road (the "site"). These statements were made to Messrs. Nousiainen and Mitchison who are officials of the general contractor, Harbridge and Cross Limited. All of the people at the site are covered by collective agreements or at least are not in a position to engage in a lawful strike, if any picket line was to be honoured, those honouring the picket line would be engaged in an unlawful strike. The applicant supplies and delivers ready-mix concrete to the site. On December 8, 1980, Schultz spoke to Nousiainen and said he was going to put up a picket line now That was the most recent incident. There are no members of the respondent trade union on the site. Schultz and Elliott are officials of the respondent trade union. The applicant is supplying concrete to Harbirdge and Cross Limited at the site pursuant to a contract.
- Sections 123 and 82 of the Act provides:
123(1) Where on the complaint of an interested person, trade union, council of trade unions or employers' organization the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, or that employees engaged in or threatened to engage in an unlawful strike, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.
(2) Where on the complaint of an interested person, trade union, council of trade unions or employers' organization the Board is satisfied that an employer or employers' organization called or authorized or threatened to call or authorize an unlawful lock-out or locked out or threatened to lock out employees or that an officer, official or agent of an employer or employers' organization counselled or procured or supported or encouraged an unlawful lock-out or threatened an unlawful lock-out, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful lock-out or the threat of an unlawful lock-out.
(3) The Board shall file in the office of the Registrar of the Supreme Court a copy of a direction made under this section, exclusive of the reasons therefore, in the prescribed form, whereupon the direction shall be entered in the same way as a judgment or order of that court and is enforceable as such.
Where, on the complaint of a trade union, council or trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened to engaged in an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike, the Board may so declare and, in addition, in its discretion, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.
The applicant argued that if a person threatens to put up a picket line there must be some intention behind these threats. The applicant pointed out that since the respondents are not involved on the site it could only surmise on the rationale for making such threats. The applicant further argued that the setting up of a picket line and the honouring of it by employees would be violations of sections 65 and 67 of the Act. The applicant stressed that there had been a series of threats and that it was reasonable to believe that a picket line would be set up. The applicant argued that it ought not to have to wait until a picket line was set up before relief is granted.
The respondents argued that since the applicant is not an employer in the construction industry it could not seek relief under the provisions of section 123. The respondents also argued that the applicant was not entitled to relief under section 82 because of the circumstances of this application and also because that section was designed to allow employers to deal with unlawful activity by their own employees. In the alternative, the respondents argued that if the applicant could make an application under sections 82 or 123, the conduct involved in the application did not entitle the applicant to a remedy.
The applicant is engaged in the delivery of ready-mix concrete to the site of construction. The Board has determined on many occasions that an employer which merely delivers material to a site of construction is not an employer within the meaning of section 106(c) of the Act. See, for example, the Ethier Sand & Gravel Limited case, [1979] OLRB Rep. Oct. 962 and the Canadian Road Asphalts Limited, case, [1980] OLRB Rep. March, 299. On the facts before it, the Board finds that the applicant is not an employer within the meaning of section 106(c) of the Act. However, the question of whether the applicant may seek relief under the provisions of section 123 is not answered by such a determination. The applicant may be an interested person within the meaning of section 123 and hence, may be able to seek relief under that section. A clear determination of whether the applicant may seek relief under section 123 is neither possible nor necessary in the context of this application. Such a determination is not necessary for reasons which subsequently appear in this decision. Such a determination is difficult in the context of this decision because none of the parties made any representations on whether the respondent trade union is a trade union within the meaning of section 106(f) of the Act. In addition, there is no indication of whether any employees who might be affected by this application would or would not be employees within the meaning of section 106(b).
The respondents have urged on the Board a very narrow interpretation of section 82. That section does not restrict relief under its provisions to the conduct of an applicant's own employees or with respect to conduct which affects an applicant's own employees. The Board finds that the applicant may seek relief under the provisions of section 82. Of course, whether the applicant is entitled to relief depends upon the facts before the Board.
The applicant's request for relief is based upon statements by Leonard Schultz and Matt Elliott that a picket line would be set up. Such a picket line in fact was never set up by anyone at any time. The applicant argues that there must be some intentions behind these threats (referred to as "statements" in the agreed statement of facts) and that the honouring of a picket line by employees would be violations of sections 65 and 67.
The Board was referred to two decisions with respect to applications for relief under section 123 where picketing had occurred. In the North Simcoe Electrical Contracting Limited case, [1973] OLRB Rep. June 336, the Board in refusing to grant relief under section 123 stated:
Based on the evidence it is apparent in this particular situation the applicant has not suffered any harm. There is no indication that its employees have refused to come to work and there is no indication that the pickets have resulted in economic pressure being brought to bear on the applicant which is harmful to its interests. CLAC has not demonstrated that either it, as a union, or any of the employees that it represents have suffered any particular economic harm. Other persons or contractors on the project have not appeared as interested persons seeking relief and they do not complain about the activity. It may very well be that they have taken other proceedings if they have been adversely affected or alternatively they may not have been affected — but in view of the nature of the evidence we are not prepared to speculate as to their position.
- Insofar as the activity of the trade union and its members is concerned it is being done peacefully and without violence, and if any harm was caused it appears to have abated on the Tuesday. By Wednesday the activity of the trade union was obviously resulting in no harm whatsoever to any person. The fact of the matter is that persons who may have been members of other trade unions were crossing picket lines which belies a view held by many persons that members of trade unions will not cross picket lines. When this application was made all the picketing had ceased. Further, there was no existing unlawful strike nor in view of the return to work of the employees on the project are we convinced that there is the threat of an unlawful strike within the meaning of Section 123.
In the Valentine Developments and Forto Forming Limited case, [1973] OLRB Rep. Oct. 537, an official of a trade union had stated that he "would blanket the area with pickets even if it costs a million dollars" and that he "would get the support of the Hamilton District Trades Council". These statements was made to representatives of the applicants and occurred in the context of which of two trade unions should be doing form work on a construction site. The alleged threat of an unlawful strike occurred at a time when the application of a pour of concrete could have resulted in serious economic consequences to Valentine Developments. In that case the Board asked whether there was a real threat to set up a picket line on the work site, and if so, did such a threat in the circumstances involve one of unlawful strike. The Board concluded that in the particular circumstances of that case the threat of an official of a trade union to set up a picket line was a threat of an unlawful strike. The Board made a direction that the respondents cease and desist from threatening to call or authorize an unlawful strike.
In the instant application there was no evidence to support from other trade unions and no threat of a strike as such. In the instant application there were statements made that a picket line would be set up. A picket line was not set up and the applicant has suffered no harm. In fact, these statements were not even made to the applicant. There is nothing before the Board to indicate whether the proposed picket line would block the entrance to the site or would merely be an informational picket line. In addition, there is nothing to indicate where any future picket line would be established. Even if a picket line had been established, there is, as was pointed out in the North Simcoe case, supra, no certainty that an unlawful strike would occur.
The distinction between the Valentine Developments case, supra, and the North Simcoe case, supra, lies in the perception of the Board of what would probably happen in the former case as opposed to what had not happened in the North Simcoe case. In the North Simcoe case, a picket line which had not caused an unlawful strike had been removed by the time the application had been made. In the instant application, after a series of statements, a picket line has not been established, no one has engaged in an unlawful strike and the applicant has not suffered any harm. The application for relief is, in the Board's view, premature and may be compared to a request for an injunction quia timet before the courts. Injunctions quia timet are not granted by the courts unless a plaintiff shows a strong case that the apprehended mischief will in fact arise, see Cheeseworth v. Toronto (1921), 1921 CanLII 473 (ON SCHCD), 49 O.L.R. 68 and Matthew v. Guardian Assurance Company (1919), 58 S.C.R. 47, and that the mischief, when it comes, will be very substantial, see Fletcher v. Bailey (1885), 28 Ch. D. 688. In the instant application, the conduct of the respondents has not violated the provisions of sections 65 and 67 and the applicant is not entitled to relief under the provisions of section 82 or section 123.
Statements by the respondents that a picket line would be set up do not persuade the Board that an unlawful strike will occur at the site. The mere apprehension by the applicant that a picket line might be set up which in turn might lead to an unlawful strike is not sufficient, on the facts before the Board, to entitle the applicant to the granting of discretionary relief under either section 82 or section 123. These applications are accordingly dismissed.