[1980] OLRB Rep. June 848
0440-80-U Mechanical Contractors Association Ontario, Applicant, V. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, and C. Burrows, Respondents.
BEFORE: R. A. Furness, Vice-Chairman.
APPEARANCES: R. A. Werry and G. Opacic for the applicant; H. M. Pollit, Chris Burrows and Don Ransberry for the respondents.
DECISION OF THE BOARD; June 4, 1980
- The applicant has applied for relief under section 123 of The Labour Relations Act and has made the following allegations in its complaint:
"The applicant is the designated Employer Bargaining Agency for the Plumbing and Pipe Fitting Industry in the industrial, commercial and institutional sector of the Construction Industry in the Province of Ontario and is currently engaged in negotiations with the Ontario Pipe Trades Council, (the designated Employee Bargaining Agency) for the renewal of the Provincial Collective Agreement. The Respondent United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463 is an affiliated Bargaining Agent of the Employee Bargaining Agency. On May 22, 1980, 3 members of Local 463 employed by George Hamers Limited, 14 members of Local 463 employed by Goodfellow & Dougherty Limited, 57 members of Local 463 employed by Harold R. Stark Limited and 9 members of Local 463 employed by Ford Mechanical commenced a strike. The striking employees who were all working in the industrial, commercial and institutional sector were instructed by the Respondent Burrows to stay off work commencing on the 22nd day of May, 1980, and to continue to stay off until further word from the Union business office. A strike was not called or authorized by all of the affiliated Bargaining Agents represented by the Employee Bargaining Agency, for all employees working in the industrial, commercial and institutional sector represented by the said affiliates, thereby making the strike called by Burrows and engaged in by members of Local 463 unlawful."
The respondents in their reply denied that they or either of them had called or authorized, counselled, procured, supported or encouraged an unlawful strike and put the applicant to the full proof of its allegations.
It was agreed that a strike commenced on May 22, 1980, and that it was continuing on June 2, 1980, the date of the hearing. At the outset, the parties agreed that the question to be answered was whether the strike was unlawful under the Act.
Negotiations for a new collective agreement were taking place in Toronto during May of this year. The new collective agreement which was being negotiated was between the Mechanical Contractors Association of Ontario (the designated employer bargaining agency) and the Ontario Pipe Trades Council (the designated employee bargaining agency). The affiliated bargaining agents represented by the Ontario Pipe Trades Council (the "Council") were in a position to call or authorize a lawful strike, subject to the provisions of section 134a(I), on May 22, 1980.
Christopher Burrows, who is the business manager of the respondent trade union, gave evidence that he is an affiliated member of the Council and also a member of the Council's steering committee. Mr. Burrows identified the minutes of the steering committee. Mr. Burrows identified the minutes of the steering committee for May 21, 1980. The minutes indicate that the tentative date for the strike was May 22, 1980. The various affiliated bargaining agents who were represented at the meeting of the steering committee reported on their present position with respect to the proposed strike on May 22, 1980. A motion was placed before the meeting which stated, "The official strike date will be Thursday, May 22nd and all locals be notified to comply". The motion was voted upon and was passed with one vote in opposition. The minutes indicate that prior to the vote representatives of Locals 46 and 67 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada anticipated that they might not be able to have their members on strike as early as May 22, 1980.
The members of the respondent trade union had conducted a strike vote on May 20, 1980, and had voted ninety-eight per cent in favour of a strike. At this point, Mr. Burrows informed the membership that they were in a position to strike on May 22, 1980, unless he told them differently. A memorandum of agreement was reached between the designated bargaining agents on Sunday, May 25, 1980. The respondent trade union conducted its ratification vote on Saturday, May 31, 1980, and the ratification votes of the other affiliated bargaining agents will be completed on June 5, 1980.
The evidence established that on May 22, 1980, the respondent trade union and three other affiliated bargaining agents commenced a strike in the industrial, commercial and institutional sector of the construction industry and that other affiliated bargaining agents did not engage in a strike on that date. Indeed, the Board finds on the basis of the evidence before it that some of the affiliated bargaining agents did not call or authorize or engage in a strike in the industrial, commercial and institutional sector of the construction industry either on May 22, 1980, or at any time subsequent to that date. The respondent trade union and its members remained on strike in the industrial, commercial and institutional sector of the construction industry on June 2, 1980, the date of the hearing of this application. When the memorandum of agreement was made on May 25, 1980, the chairman of the employer bargaining agency asked the chairman of the employee bargaining agency for an understanding that the affiliated bargaining agents be instructed to return to work. The chairman of the employee bargaining agency agreed to this request.
The applicant argued that the intent of section 1 34a( I) was to make selective strikes, as opposed to general strikes unlawful in the industrial, commercial and institutional sector of the construction industry in the circumstances of this application. The applicant also argued that the effect of section 134a(l) was to require all of the affiliated bargaining agents to participate in a strike in the circumstances of this application.
The respondents argued that the wrong parties had been named as respondents in this application. It was the position of the respondents that Local 46 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and its business manager should be the respondents in this application because these two parties appeared to have broken the law. The respondents emphasized that the employee bargaining agency had called or authorized the strike and that there was no evidence that any of the affiliated bargaining agents had not called or authorized a strike of its members. The respondents also argued that the intent of section 134a(l) is to prevent independent or "wild cat" action by one affiliated bargaining agent and not to intrude into the circumstances of this application.
In reply, the applicant agreed that the calling or authorizing of a strike is a matter of evidence. However, the applicant argued that where it appears that there has been a violation of section 134a(l) the onus shifted to the respondents to lead evidence that their conduct was not a violation of this section. In the alternative, the applicant argued that following the undertaking of May 27, 1980, there was no longer a lawful strike.
Sections 123 and 134a(l) state:
"123.-(l) 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 than an officer, official or agent of an employer or employer's 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.
134a-(l) Where an employee bargaining agency desires to call or authorize a lawful strike, all of the affiliated bargaining agents it represents shall call or authorize the strike in respect of all the employees represented by all affiliated bargaining agents affected thereby in the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106, and no affiliated bargaining agent shall call or authorize a strike of such employees except in accordance with this subsection."
There is no dispute that the applicant is an interested person or employer's organization within the meaning of section 123 of the Act. There is no dispute that the respondent trade union and its business manager as its officer, official or agent within the scope of his authority to act on behalf of the respondent trade union called or authorized a strike. The question to be answered is whether such a strike was unlawful having regard to the provisions of section 134a(1) of the Act. There is no doubt that the Council as the employee bargaining agency desired to call or authorize a lawful strike. However, there is no evidence whether all of the affiliated bargaining agents represented by the Council called or authorized a strike in respect of all the employees represented by all affiliated bargaining agents affected thereby in the industrial, commercial and institutional sector of the construction industry. There is evidence before the Board that the respondent trade union called or authorized a strike.
The intention of section 134a(l) is to set forth circumstances where a strike which would otherwise be lawful under the Act becomes unlawful under certain circumstances. Clearly, section 134a(l) addresses itself to selective strikes and section 134a(2) addresses itself to selective lock-outs. The intent of section 1 34a is to preserve conditions of uniformity where lawful strikes and lawful lock-outs may be called or authorized and to prevent certain employees, trade unions and employers from being placed in a position of disadvantage relative to other employees, trade unions and employers, thereby affected in the industrial, commercial and institutional sector of the construction industry. In this manner, the cohesiveness of bargaining agencies may be better preserved.
In this application a minority of the affiliated bargaining agents engaged in a strike and it appears that a small minority of the employees who are affected by the bargaining in the industrial, commercial and institutional sector of the construction industry engaged in a strike. It appears that the representatives of the steering committee did not adequately appreciate the difficulties that some affiliated bargaining agents might encounter in calling or authorizing a strike on such short notice. In the Board's view, it is no defence to an alleged violation of section 1 34a(1) to plead that the other affiliated bargaining agents did not do what they were either supposed or believed to be doing. A degree of co-ordination is essential in the calling of strikes if section 1 34a(1) is not to be violated. The Board emphasizes that it is not dealing with this application on the basis that not all of the affiliated bargaining agents called or authorized a strike on May 22 or 23, 1980. The Board recognizes that in certain circumstances all of the affiliated bargaining agents may not be able to call or authorize a strike on the same day. It all depends on the facts of any given case. In this application it is clear that the respondents have continued to engage in a strike for almost two weeks when they have been well aware that some affiliated bargaining agents have either not called or authorized a strike at all or have called or authorized a strike for a much shorter period of time.
The Board does not agree with the respondents' contention that Local 46 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the Unites States and Canada has violated section 134a(l) in the circumstances of this application. While that affiliated bargaining agent may be subject to certain rights and duties with respect to the Council and other affiliated bargaining agents, the Board is not prepared to find that that affiliated bargaining agent has violated section 134a(1) on the facts of this application. The Board, however, expresses no opinion of a situation where a minority of affiliated bargaining agents and a minority of employees thereby affected have remained at work while a majority of affiliated bargaining agents and a majority of employees thereby affected have engaged in a strike in circumstances similar to the facts of this application. This is a case of first impression and no doubt different facts and arguments will lead to further elucidation of section 134a(l).
The Board finds that the respondents have, in the circumstances of this application, violated the provisions of section 134a(1) of the Act in that they have called or authorized an unlawful strike in the industrial, commercial and institutional sector of the construction industry. The Board further finds that Christopher Burrows has counselled, procured, supported or encouraged an unlawful strike in the industrial, commercial and institutional sector of the construction industry. Pursuant to section 123 of the Act and in the exercise of its discretion, the Board issues the following direction:
The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, and C. Burrows shall forthwith cease and desist from calling or authorizing an unlawful strike in the industrial, commercial and institutional sector of the construction industry.
C. Burrows shall forthwith cease and desist from counselling, procuring, supporting or encouraging an unlawful strike in the industrial, commercial and institutional sector of the construction industry.
C. Burrows shall forthwith inform the employees who are engaging in an unlawful strike in the industrial, commercial and institutional sector of the construction industry that they are engaging in an unlawful strike.