Ontario Labour Relations Board
[1982] OLRB Rep. March 377
1353-81-R International Association of Bridge, Structural and Ornamental Ironworkers Local 721 and all other Ontario Locals 700,736, 765, 786 and Ironworkers District Council of Ontario, Applicant, v. Folgor Construction Limited, Respondent, v. International Union of Operating Engineers, Local 793, Intervener #1, v. The Formwork Council of Ontario, Intervener #2, v. Labourers' International Union of North America, Local 183, Intervener #3.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Maurice A. Green and John Donaldson for the applicant; Gary Walker and Domenic Faga for the respondent; A. M. Minsky and Q. Ceolin for the interveners.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN AND BOARD MEMBER H. J. F. ADE; March 30, 1982
This is an application for certification in the construction industry made pursuant to the provisions of section 144(1) of the Labour Relations Act. The applicants are applying on their own behalf, on behalf of the rodmen designated employee bargaining agency and on behalf of all other affiliated bargaining agents of the employee bargaining agency to be certified to represent all rodmen employed by Folgor in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. The application was listed for hearing for the purpose of hearing the evidence and representations of the parties with respect to various matters arising out of the interventions and an allegation contained in the reply to the application that, prior to the making of the application, “… the applicant unlawfully coerced the respondent to employ two of its members…”.
Counsel for the interveners asked the Board at the hearing to stay this application pending the determination of a jurisdictional complaint which had been filed with the Board by the International Association of Bridge, Structural and Ornamental Ironworkers, Local 721 ("Local 721") on September 4th, some two weeks prior to this application. The complaint was in process at the pre-hearing conference stage. Counsel's reasons underlying his request included his contention that there would be substantial overlapping evidence and, therefore, the attendant risk of different findings being made on the evidence because of the likelihood that the two matters would be heard by the Board, differently constituted in each case. The Board, after hearing the representations of the parties, refused to grant the request for the stay of proceedings on the grounds that the issues which are alleged to overlap include representation issues which are more properly dealt with in a certification proceeding than in a proceeding with respect to a jurisdictional complaint. The parties then agreed that the Board should deal with the threshold issue of whether that applicant unlawfully coerced the respondent to employ two of its members, since that would determine whether the application was to proceed. Accordingly, this decision is an interim one dealing with that single issue.
The findings of fact herein reflect the Board's assessment of the evidence of five witnesses having regard for the consistency of their evidence, the reliability of their recollection of events, their ability to resist the influence of interest to modify their recollections, their relative credibility and their demeanor. In one instance of substantial contradiction in the evidence of two witnesses, the Board has dealt separately with the resolution of that conflict.
The construction project on which the employees affected by this application were working is located at Victoria Park and Lawrence Avenue East in Metropolitan Toronto. Lormark Limited ("Lormark") was acting as general contractor of the project and its superintendent was Mr. Ernest Perrier. Work on the project began in June 1981 and before the end of the month the respondent Folgor Construction Limited ("Folgor"), a formwork contractor engaged under sub-contract from Lormark, began work on the project. At the times material to this application Folgor had from 10 to 12 employees on the project, three or four of whom were doing the reinforcing work. They were members of intervener #3 ("Local 183"). It is Folgor's consistent practice to use members of Local 183 on reinforcing work and, prior to the events giving rise to this application for certification, it has not employed members of the International Association of Bridge, Structural and Ornamental Ironworkers.
While counsel for the interveners based his application for a stay of these proceedings on a jurisdictional complaint pending before the Board in which Local 721 is the complainant and Folgor and Local 183 are the respondents, the Board's records reveal that it is the second such complaint to be filed with the Board. The disputed work in both complaints is the placing of reinforcing steel in walls and footings at the job site involved in the instant application. The relief sought in both applications included, in part, an order of the Board that Folgor sign a collective agreement with Local 721. Each complaint was signed by Allan MacIsaac, Business Manager and Financial Secretary of Local 721. The first complaint was filed July 17th and asserts that Local 721 was first aware of the reinforcing work being done by members of Local 183 by July 10th, on which date it attempted to get Folgor's superintendent to change the assignment to members of Local 721. Local 721 also approached Local 183 in an attempt to resolve the dispute on July 15th. The first complaint, Board File No. 0884-8 l-JD, was withdrawn on September 4, 1981 coincident with the filing of the second complaint, Board File No. 1252-81-JD.
At the beginning of September, the structural steel contractor began work on the project employing an erection crew of five ironworkers. It may be inferred readily from the evidence that they were members of Local 721. Around the end of the first week in September, the steward of the erection crew told Perrier that Folgor's men should be taken off the work of placing reinforcing steel or the ironworkers doing the structural steel work would walk off the job. Perrier took no action and nothing happened. According to Perrier, the incident with the steward occurred about one week before John Donaldson, President of Local 721, visited the project on the morning of September 16th and approached Perrier about the reinforcing work. Perrier' s version of what transpired between him and Donaldson at that time differs substantially from Donaldson's version which is dealt with later in this decision. In his examination-in-chief, Perrier told the Board that Donaldson advised him that he should stop using labourers for the reinforcing work or there could be pickets at the project the next day. Under cross-examination by Local 721 counsel, he was uncertain whether it was Donaldson or the Ironworker steward who had threatened the picketing of the project, but he was certain that one or the other told him that pickets would be placed at the project if members of Local 183 continued to place reinforcing steel. Perrier, who has some twelve years experience as a superintendent in construction, believed that the other trades on the project, all of which were represented by unions, would not cross a picket line if one was established. Since he did not want any delay in the project, he immediately told George Pietroangelo, Folgor's general foreman, that there would be a picket line on the job if Folgor did not take their men off the reinforcing work and replace them with members of Local 721. Perrier told Pietroangelo that he was not prepared to have the job delayed and that Pietroangelo better do as Perrier was telling him. Pietroangelo reported this conversation to his own boss and this led ultimately to consultations between principals of Folgor and Lormark. As a result of those consultations, Pietroangelo was instructed by his superior later the same day to put ironworkers on the reinforcing work. Pietroangelo obtained Donaldson's name and telephone number from a business card which was stuck up on a wall of Perrier's office and to which Perrier had directed him. Perrier had been given the card by Donaldson that morning and had placed it on the wall where he kept other business cards. Pietroangelo phoned Local 721 that same afternoon and ordered two ironworkers.
Local 721 referred two of its members for work with Folgor on September 17th. Pietroangelo put them to work on the reinforcing steel and re-assigned his labourers to other work. When Local 721 gets a request from a contractor which is not bound to an appropriate ironworkers' collective agreement, its standard practice is to have the members assigned to work with the contractor sign a proof of membership form which is then filed as evidence of membership support for an application for certification. Local 721 was following this practice when it filed this application by registered mail on September 21st on behalf of the applicants. It is dated September 18th and signed by MacIsaac.
As indicated above, there was substantial contradiction in the testimony of Donaldson and Perrier as to what took place between them when Donaldson visited the project on September 16th. Donaldson's version is that he had just returned to his regular duties with Local 721 after being on leave of absence for most of the summer and, as he does customarily, was driving around the territory for which he is responsible when he noticed a crane hoisting steel. He drove to the site where the crane was at work. He saw workers placing reinforcing steel and spoke to one of them. He learned that the work was being done by labourers. Next he spoke to the steward on the structural steel erection crew and admonished him for not being aware that the reinforcing steel was being placed by labourers rather than ironworkers. He then sought out Perrier and asked him if he was aware that members of Local 183 were doing the reinforcing work and that it should be done by members of Local 721. His testimony was that he spent four or five minutes discussing this with Perrier who volunteered to correct the situation. He testified further that, while he was with Perrier for approximately twenty minutes, there was no reference to the possibility of there being any "trouble" or about pickets. They spent the rest of the time looking at drawings of the project and discussing the progress of the work.
Donaldson admitted in cross-examination that he approached Perrier in order to have Lormark act to get Folgor to take members of Local 183 off the reinforcing steel and replace them with members of Local 721. He also admitted that, while he had disclaimed any knowledge of the project prior to coming across it on September 16th, he would have heard from other representatives of his union if they had known Local 183 members were on the job doing reinforcing work. He acknowledged that he was aware of the second jurisdictional dispute complaint, that it was a complaint against Local 183 and that it had been discussed with him but he could not remember when. He admitted also that the steward for the ironworkers on the structural steel erection would have been responsible for representing ironworkers if they had been working on the reinforcing steel.
Whichever version of Donaldson's visit to Perrier the Board accepts, there are no grounds for the Board doubting the credibility of Perrier and Pietroangelo as to how Perrier reacted to Donaldson's visit and how Folgor in turn responded to Lormark's instructions that delay of the project would not be tolerated and if it was necessary to replace labourers on reinforcing steel with ironworkers in order to avoid delay, it was expected that Folgor would comply. Yet, according to Donaldson's version, he and Perrier had a friendly chat of which only four or five minutes was given over to the problem of labourers doing the reinforcing work, which, according to Donaldson, belonged to members of Local 721. As a result of the chat Perrier volunteered to resolve that problem. Not only are the details of each version in disagreement, Perrier's reaction to Donaldson's visit is wholly out of keeping with what Donaldson claims was the nature of their conversation. That anomaly alone makes it difficult for the Board to attach any credibility to Donaldson's version of his conversation with Perrier. That difficulty is only increased by the fact that Donaldson initially denied that he had knowledge of the project prior to his visit, that he later acknowledged that he would have been told if another ironworker representative had been aware of labourers doing the reinforcing work and the fact that he also later admitted that the second jurisdiction complaint had been discussed with him. When these admissions are juxtaposed with the fact that Donaldson's boss signed both jurisdiction complaints, that the ironworkers had been aware of the labourers presence on the project since at least July 10th, that the second jurisdiction complaint was filed about the same time that the structural steel erection crew made up of members of Local 721 arrived on the project, lead the Board to reject Donaldson's version of his conversation with Perrier as not credible.
While Perrier could not be certain whether it was the ironworker's steward or Donaldson who told him that the project would be picketed if the labourers who were doing the reinforcing work were not replaced with ironworkers, he was certain that one or the other of them made the statement. Whichever made it, it was made by an official or agent of the ironworkers and, from his experience in the construction industry, Perrier equated that threat with the prospect of the project being delayed because he expected that the other trades would not cross the picket line until the labourers were removed from the reinforcing work. Even if Perrier's fear that the other trades would refuse to cross the picket line was seen to be unfounded, he had also been threatened by the ironworkers steward with the prospect of the structural steel men walking off the job if he failed to have the labourers removed from the placing of reinforcing steel. The reality of the construction industry is such that Perrier would have been naive in the extreme if he had not expected the structural steel crew to observe an ironworker picket line.
While Perrier may have been uncertain under cross-examination whether it was the steward or Donaldson who threatened to have the project picketed, the Board is satisfied that the circumstantial evidence of the events which ensued Donaldson's visit to the project strongly supports the finding that it was Donaldson who made the threat and the Board so finds. This threat was made on September 16th, approximately one week after the steward on the structural steel crew threatened Perrier with the possibility that the employees on the crew would walk off the job if labourers continued to do the reinforcing work.
Counsel for Folgor and Local 183 both contend that Folgor was compelled by the threat of picketing, which they allege is threatening an unlawful strike, to request men from Local 721. Therefore the threat set up the opportunity for the application for certification to be filed. It is the compelling of that request from Folgor for Local 721 members which counsel for Local 183 argues vitiates the application for certification because the threat put Folgor in the position of choosing between complying with Local 721’s demand to use its members to do the reinforcing work on the one hand, or on the other being seen by Lormark as the cause of delaying the project and possibly being removed from the project by Lormark.
Both counsel agree as well on the legal consequences which should flow from Local 721's conduct. Although the details of their arguments differ, they had a common thrust. They argue that, for the Board to allow Local 721 to engage in such conduct for purposes of promoting an opportunity to obtain bargaining rights would be to allow it, and consequently other trade unions as well, to circumvent the orderly procedures prescribed by the Act for obtaining bargaining rights, all of which would be contrary to the spirit of the Act.
They rely on the Board's decision in Radio Lunch (Sudbury) 50 CLLC ¶17,012, Robert McAlpine Ltd., [1961] OLRB Rep. June 178 and United Brotherhood of Carpent ers and Joiners of America [1978] OLRB Rep. August 776 which they assert stand for the principle that the Board will refuse to entertain an application for certification if the applicant is at the same time engaged in an unlawful act (Radio Lunch and McAlpine) and that an unlawful act connected with an attempt to gain or extend bargaining rights by voluntary recognition is contrary to the scheme and purpose of the Act (United Brotherhood). In Radio Lunch and McAlpine the unions were seeking to advance their claim for bargaining rights by engaging in unlawful strikes at the same time when their applications for certification were before the Board. The Board's decision in Radio Lunch, supra, makes it clear that recognition strikes are an improper way of acquiring bargaining rights:
“It goes without saying that the Board must at all times so administer the legislation so as to encourage compliance with its provisions. We cannot think of anything less likely to secure that result than to adopt a policy with respect to certification proceedings from which the inference might be drawn that aspirants to collective bargaining status may with impunity attempt to acquire that status by improper means and at the same time, on a less desirable but precautionary alternative, come before the Board as applicants for certification…”.
See as well the Board's decision in Custom Aggregates, [1978] OLRB Rep. March 215, in which the Board refused to allow certain persons to vote in a representation vote even though they were employed in the voting constituency at the time the vote was held.
Counsel for Local 183 contends that the conduct of Local 721 was more grievous than the conduct of the unions in Radio Lunch or McAlpine, supra, because it was the threat of picketing and its implications for Lormark and Folgor which created the basis for making the application for certification possible. Counsel argues that, had Folgor not been threatened, it is patently clear from its practice of using members of Local 183 for reinforcing work that it would not have hired members of Local 721 and consequently Local 721 would have had no opportunity to apply for a certification.
In addition to the above cited cases, counsel for Folgor relies on the Board's recent decision in Traugott Construction Limited, [1981] OLRB Rep. Nov. 1680. Counsel asserts that the decision stands inter-alia, for the principle that the Board will decline to give effect to bargaining rights obtained as a consequence of unlawful conduct. This is a case in which the employer, Traugott, signed a voluntary recognition document with the Toronto Central Ontario Building and Construction Trades Council after picketing of its projects had caused an unlawful strike. When one of the council's constituent trade unions later attempted to rely on that document to establish its own bargaining rights, and therefore its right to refer a grievance to arbitration under section 124 of the Act, the Board held that it could not rely on that document because it was signed as a consequence of the council's unlawful acts. All of the cases cited above involved unlawful acts associated with attempts to obtain bargaining rights, three of which involved unlawful strikes and one a breach of the duty to bargain in good faith (United Brotherhood). In the case at hand, the threatened picketing did not materialize and nor did the unlawful strike which Folgor and Lormark apprehended. The facts leave no room for doubt that the threat of picketing was the direct cause for Folgor ordering the men from Local 721, which in turn paved the way for this application. The question for the Board to determine is whether in these circumstances, it should refuse to entertain the application, as counsel for Folgor and Local 183 contend.
Had the events transpired as Lormark and Folgor apprehended, in other words had the picketing on behalf of Local 721 been carried out with the result that any of the trades on the project had refused to cross the picket line, there is no doubt such actions would have constituted the violation of either or both sections 74 and 76 of the Act which are set out below:
No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.
76.- (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.
(2) Subsection (1) does not apply to any act done in connection with a lawful strike.
The problem for the Board is that these events did not occur and the Board is being asked to find that the threat of the picketing amounts to an unlawful act sufficiently grievous for the Board to refuse to entertain the application for certification.
- In order to see whether the facts support such a finding, it is useful to review briefly the sequence of events revealed by the findings of fact:
(a) on July 10th, Local 721 sought to have Folgor re-assign the reinforcing work from members of Local 183 to members of Local 721;
(b) on July 15th, Local 721 approached Local 183 in an attempt to resolve the jurisdictional dispute;
(c) on July 17th, the two foregoing attempts having failed, Local 721 filed the first jurisdictional complaint seeking to have the work re-assigned to its members and seeking to have the Board direct Folgor to sign a collective agreement binding upon it and Local 721;
(d) on September 4th, the first jurisdictional dispute complaint was withdrawn and the second one filed, which was approximately the same time that the structural steel contractor began work on the project with an erection crew of Local 721 members;
(e) approximately one week before the September 16th visit of Donaldson to the project, the steward for the ironworkers on the erection crew threatened Perrier, Lormark's superintendent, that the crew would walk off the job if Local 183's members were not replaced by members of Local 721 on the reinforcing work. That walk-out did not materialize, however; and
(f) on the morning of September 16th, Donaldson visited the project and threatened Perrier with picketing if Local 183 members were not replaced with members of Local 721 on the reinforcing work.
The Board wishes to first make it clear that there is neither an iota of evidence nor any allegation that Local 721's conduct with respect to the attempts to settle the jurisdictional issue was anything but proper. The facts with respect to the above sequence of events, however, leave no doubt that Local 721 was claiming the reinforcing work which was being done by Folgor with members of Local 183 and that it was seeking to have Folgor bound together with Local 721 to a collective agreement, in other words to gain bargaining rights for Folgor's employees who do reinforcing steel work. Shortly after members of Local 721 began to work on the project, the steward for the ironworkers who was unquestionably an agent of Local 721, threatened a walk-out of the erection crew. The threat was not fulfilled, but approximately a week later Donaldson visited the project and raised the threat of it being picketed. The Board's own experience with unlawful strikes in the construction industry, as evidenced by its decisions in applications under section 135 of the Act, is that their visible cause in many instances is the presence of pickets at a construction site. The Board's experience is reflected by the common view of building trades unions, contractors and purchasers of construction, that it is a fact of life in the construction industry that the mere presence of pickets will frequently cause one or more of the unionized trades on a project to lay down the tools or to refuse to cross the picket line, regardless of the underlying problem.
In that particular context of the construction industry, Donaldson's threat to Perrier that the project would be picketed if Local 183 members were not replaced on the reinforcing work by Local 721 members, coming as it did shortly after the steward's threat of the walkout, may properly be seen to constitute the threat of an unlawful strike and, therefore, a violation of section 74 of the Act. Certainly Lormark and Folgor perceive the circumstances surrounding Donaldson's threat to be just that, the threat of an unlawful strike. The Board agrees with that perception and finds the Donaldson's threat of picketing the project following upon the earlier threat of the union steward constitutes a violation of section 74 of the Act.
The threat of picketing in every case will not be cause for the Board to find a violation of the Act, but in the case at hand, withing the context of the sequence of events summarized in paragraph 21, we have the threat of picketing following upon an earlier threat that the ironworkers on the erection crew would walk off the job if Folgor did not substitute members of Local 721 for members of Local 183 on the reinforcing work. It is on these facts that the Board has concluded that there has been a threat of an unlawful strike. The fact that picketing will not always be cause for finding a violation of the Act is readily demonstrated in the Board's decision in Maitland Redi-Mix, infra, referred to in the dissent. In that case the Board found that the threat of picketing was not sufficient grounds to entitle the applicant to discretionary relief under either of section 82 or 123 (now section 94 and 135) of the Act. It is a decision which deals with whether the Board should exercise its descretion under either sections 94 or 135 to issue a declaration of an unlawful strike and cease and desist order by way of relief and, therefore, may be distinguished from this one which deals with an application for certification. Nonetheless it exemplifies some of the circumstances in which the Board will and will not relieve against picketing by contrasting the facts and conclusions of the Board in its decisions in North Simcoe Electrical Contracting Limited, [1973] OLRB Rep. June 336 and Valentine Developments and Forto Forming Limited, [1973] OLRB Rep. Oct. 537. In the former case, even though picketing occurred it had ceased by the time of the application and the Board, finding that no threat of an unlawful strike existed, declined to issue a direction. In the latter case, on the other hand, the Board granted relief against a threat of picketing because, on the facts, it found that the threat of picketing was the threat of an unlawful strike. At paragraph 11 of Maitland Redi-Mix the Board explains the distinction:
“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.”
The Board finds it was that threat alone which compelled Folgor to request the men from Local 721. The fact that two men were at work for Folgor on September 21st, 1981, enabled the applicants to make the application and that opportunity derived directly from the unlawful conduct of officers or agents of Local 721, one of the applicants. In other words, but for the unlawful conduct of Local 721, the applicants would have had no basis on which to make this application. In these circumstances, the Board finds that the policy expressed in Radio Lunch, Supra, has application to the facts before the Board herein and, therefore, that the unlawful threat vitiates the employment relationship with the two members of Local 721 which it sought to impose on Folgor. For these reasons the Board finds that, for purposes of this application for certification, the two persons in question are not employees of Folgor under the Act. This being the case, on September 21st, 1981, when this application was made, the applicants had insufficient membership support to sustain the application. To conclude otherwise would be to make a mockery of the orderly and, for the construction industry, expedited procedures prescribed by the Act for obtaining bargaining rights.
In the result, this application is dismissed.
DECISION OF C. A. BALLENTINE, BOARD MEMBER;
I cannot agree that the evidence supports a finding that Mr. John Donaldson threatened a picket line, and thereby violated section 74, as the majority have found in paragraphs 14 and 22 of the decision.
The majority relies on the evidence of Mr. Perrier, the superintendent for the general contractor "Lormark". The evidence of Mr. Perrier was unclear and contradictory. In examination-in-chief by the respondent's counsel he could not identify who had made a threat of a picket line. However under cross-examination by counsel for Local #721, he stated that Donaldson talked about Ironworkers being hired to tie the rods, and he admitted Donaldson did not mention a picket line. On the other hand Mr. Donaldson's evidence was clear and unequivocal. He stated under cross-examination by both counsel for the respondent company and counsel for the intervener union Local #183 that at no time did he threaten a picket line or a strike. His evidence was consistent. I believe him. It just does not make sense that a person of his experience would make such a stupid threat of picketing, which has been attributed to him.
It is my opinion that, in any event, the Board cannot find a violation of section 74, even though the majority has found through circumstantial evidence that there was a threat of a picket line. No picket line was actually established at any time, nor was there a strike at the project. The Labour Relations Act does not refer to picket lines. Sections 74 and 135 refer to threatening an illegal strike, not threatening to picket, although I recognize that picketing might lead to an illegal strike. Nevertheless threatening to establish a picket line is not the same as threatening an unlawful strike and is not prohibited by the Act. The Board in Maitland Redi-Mix Concrete Products Ltd. [1980] OLRB Rep. Dec. 1751 recognized this when it stated at page 1755, para. 12,
“Statements by the respondents [trade union officials] 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.
If an illegal strike had been threatened by the applicant union, either Lormark or Folgor could have made an application to the Board under section 135. This is the remedy that is open to an interested party when a strike is threatened or takes place. The Board has a practice dealing with such applications in a swift and efficient manner.
For the majority to conclude as they have, in this case, that an alleged threatened picket line constitutes a violation of section 74, without the protection of a formal application or complaint being filed and processed is prejudicial and unfair to the applicant union.
In my opinion the facts of this case clearly demonstrate that the respondent, at the relevant times had in its employ two persons who had been sent to work for it by the applicant. Therefore this case should not be dismissed at this stage.