[1982] OLRB Rep. June 922
0407-82-U Sarnia Construction Association and Labour Relations Bureau of the Ontario General Contractors Association, Applicants, v. The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 663, Respondent
BEFORE: George W. Adams, Q. B., Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Bruce Binning, Andy Pilat and Jim Thomson for the applicants; and L. C. Arnold and W Robb for the respondent.
DECISION OF THE BOARD; June 9, 1982
This is an application under section 135 of the Labour Relations Act for a declaration that the respondent, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 663 (hereinafter referred to as "Local 663") has engaged in acts contrary to sections 148(1), 74 and 76(1) of the Act and that a direction be granted requiring the respondent to cease and desist from engaging in any such unlawful acts.
The applicant, Sarnia Construction Association, is an employers' organization and represents its member contractors who are affected by picketing activity at various job sites in the City of Sarnia and surrounding areas arising out of the province-wide strike called by the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (hereinafter referred to as the "United Association") and the Ontario Pipe Trades Council both of which are together designated as the employee bargaining agency representing, for the purposes of province-wide negotiations, the mechanical trade employees employed in the industrial, commercial and institutional sector (hereinafter referred to as the "ICI" sector) of the construction industry who are represented by United Association locals described in the legislation as affiliated bargaining agents. The respondent Local 663 is one of the affiliated bargaining agents represented by the employee bargaining agency. The Labour Relations Bureau of the Ontario General Contractors Association is a constituent element of various employer bargaining agencies for various trades currently engaged in collective bargaining in the construction industry and affected by the picketing.
It was agreed that all of the affiliated bargaining agents or locals of the United Association in Ontario in the ICI sector are engaging in a lawful province-wide strike and that Local 663 in Sarnia is picketing all of the sites that the employees it represents were working on prior to the strike. As a result of the said picketing, other craft employees such as electricians, ironworkers, insulators, teamsters, operating engineers, labourers, carpenters, and cement masons employed by contractors who are members of the applicant, Sarnia Construction Association, have refused to report for work as they were normally scheduled to do. It was agreed that the electricians, ironworkers, insulators, teamsters, and operating engineers were not in a strike position at the time such employees refused to report to work. Labourers and cement masons were in a strike position but had not called the province-wide strike pursuant to the legislation at the times relevant to this application. And, finally, carpenters were not in a strike position at the time of the application but have since arrived at this position although a province-wide strike has not been called pursuant to the Act. It would appear that the craft employees honouring the picket lines are employed either by single trade contractors wholly unconnected with the mechanical trades bargaining except by geography or by multi-trade contractors who do employ members of Local 663 as well as other trades. We are, however, given to understand that the single trade contractors constitute the vast majority of the contractors employing unrelated trades being adversely affected by Local 663 "site-wide" picketing.
It was also agreed that United Association locals or affiliated bargaining agents in the Toronto and Hamilton area who represent about one-half of the employees covered by the province-wide ICI agreement and who are engaged in the strike, are not picketing at this time. The understanding in this area is that a project will not be picketed by a striking trade unless the work previously performed by the striking employees before the strike is being performed. If someone is attempting to perform the work, site-wide picketing will prevail for the duration of the strike. This approach then balances the interests of striking employees and others working on the same sites and has made an important contribution to labour relations stability in the area. Thus, the tradesmen of single trade and multi-trade contractors not represented by United Association locals in the Hamilton and Toronto area do not have picketing directed at them in these areas and are able to work. They are not forced to choose between trade union loyalties and legal obligations. On the other hand, the parties agree that the picketing in Sarnia has resulted in nearly all the employees, represented by other local trade unions affiliated through the Sarnia Building and Construction Trade Council with Local 663, refusing to cross the challenged picket lines except for the sheet metal workers and bricklayers who are themselves engaged in a lawful province-wide strike. All construction activity in this area in the ICI sector has therefore been brought to an abrupt halt. Counsel for the applicants alleges that the picketing conduct of the respondent constitutes improper "selective" picketing contrary to section 148(1) of the Act or improper "secondary" picketing contrary to sections 74 and 76. These provisions read:
148.- (1) 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 117(e), and no affiliated bargaining agent shall call or authorize a strike of such employees except in accordance with this subsection.
- 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 or lawful lockout.
It is the applicants' submission that the purpose of section 148 is to provide for uniform industrial conflict when this proves necessary and that the selective picketing, inflicting greater economic harm on some mechanical trades employers than on others, constitutes a violation of the purpose and spirit of the provision. Counsel points out that certain multi-trade employers such as Comstock International Ltd., Sheafer Townsend Construction Ltd. and Lummus Canada Inc. employ trades other than the mechanical trade employees and that, in particular, these employers are being singled out in the Sarnia area in contrast to similar multi-trade employers in the Hamilton and Toronto area who have been permitted to carry on construction with their other trades provided that the work of the mechanical trades employees is not being performed by anyone else. Alternatively, it is argued that the picketing constitutes classic secondary pressure causing unlawful strikes contrary to section 74 and 76 of the statute. Counsel emphasizes that there is no evidence or allegation that the work of employees participating in the strike is being performed by anyone else and that therefore the picketing in question can only have the purpose of causing employees of contractors not involved in the strike to engage in an unlawful strike activity contrary to sections 74 and 76. Indeed, counsel accepted that site-wide picketing would be appropriate if the work in question was being performed. But such is not the case and it was submitted that section 76(2) is not intended to shelter such clearly secondary picketing regardless of the geographical proximity of the employees.
On behalf of the respondent, it was submitted that section 148 did not provide the power to the Board to regulate the strategies and tactics associated with a province-wide strike after such a strike had been called and authorized. Counsel stressed that picketing is a significant labour relations phenomenon that the Legislature would have specifically mentioned in the context of section 148 if its regulation was intended. It was submitted that over 1,000 plumbers in the Saria area were on a lawful strike and that they were entitled to demonstrate this fact. It was further submitted that the picketing employees had been employed on the various sites at which they are picketing and that in every sense of the word the picketing was "primary" and not secondary. Our attention was directed to Canteen of Canada Limited, [1978] OLRB Rep. Mar. 207 and George Wimpey (Canada) Limited, [1978] OLRB Rep. Dec. 1096 which were said to stand for the proposition that as long as a lawful strike was in progress all picketing by participating employees can be said to arise out of it and is therefore protected by section 76(2). The same cases were relied on for the submission that section 74 had to be read in conjunction with the saving section in section 76.
We are of the view that section 148(1) does not prohibit selective picketing and, indeed, does not purport to regulate picketing associated with a province-wide strike called pursuant to the section in any direct sense. Had the Legislature intended the section to be a direct vehicle for the regulation of picketing it would have been explicit.
However, the concept of picketing is in many ways regulated by the more general provisions contained in sections 74 and 76 of the Labour Relations Act and they must be interpreted with due sensitivity to the reality of the province-wide single trade bargaining created by the statute. We also accept that section 74 must be read in light of and subject to section 76 and the saving provision in that section, i.e. subsection 2. See Canteen of Canada Ltd., supra, paragraph 25. Viewing this application under section 135 against these sections, we observe that it was not suggested or argued before us that the application, having been brought against a trade union and not against particular officers, officials or agents of the trade union, was technically unfounded. (See the respondent's filing on the first day this matter came on for hearing.) Rather, the matter was argued on its merits on the basis that the picketing was either sanctioned by section 76(2) or it was not and not that the applicants had chosen the wrong respondent(s). On this basis then, we are prepared to accept that by naming the respondent trade union the applicants were alleging that the officers, officials and agents of the local trade union in the general sense had sanctioned the challenged picket line and thereby had procured or encouraged an unlawful strike within the meaning of section 74 and that the same actions (i.e. the setting up of the picket lines) by such persons amounted to acts which they would know or ought to know would cause other persons to engage in an unlawful strike within the meaning of section 76(1). From this perspective the conduct of setting up picket lines which cause unlawful strikes contrary to sections 74 and 76 can be remedied by the Board under section 135 as the procuring or encouraging of unlawful strikes by officers, officials and agents of a trade union provided the allegations are made out. At no time was it suggested that it was necessary for the applicants to name an official or officer or agent of Local 663 for the matter to be entertained under sections 74 and 76. Had the issue been raised the application might have been amended at the hearing since an officer of Local 663 had notice of this matter and attended the hearing.
Sections 74 and 76 do deal with the concept of picketing but do not mention it specifically. See Laskin, The Labour Relations Amendment Act, 1960, (1961-62), 14 U.T.L.J. 116 at 120. It is well recognized in this province that a picket line can cause an unlawful strike within the meaning of the Act. See Nelson Crushed Stone, [1977] OLRB Rep. Nov. 713. See also Local 273, International Longshoremen's Ass'n v. Maritime Employers' Ass'n, 1978 CanLII 158 (SCC), [1979] 1 S.C.R. 120 and Note, Whether Honouring Picket Lines Constitutes a "Strike" (1979), 11 Ottawa Law Review 771. There is no argument or evidence before us that the activity of those employees who recognized the respondent's picket lines was anything other than concerted or based on a common understanding within the meaning of the legislation. We are therefore prepared to find that the actions of these craft employees constitute an unlawful strike within the meaning of the Act in that the procedural condition precedents to calling a timely and otherwise lawful province‑wide strike under the statute had not been complied with prior to the work refusals in question. It goes without saying that this finding is only for the purpose of this application. The application was not brought against such employees and there is therefore no need to decide whether our discretion under section 135 ought to be exercised with respect to them having regard to all of the industrial relations circumstances. See Canadian Elevator Manufacturers, [1975] OLRB Rep. Nov. 868 at para. 15. This then raises the question of whether the respondent can rely upon section 76(2) by arguing that the picket lines are in connection with a lawful strike and therefore protected.
We are satisfied that sections 74 and 76 are designed to deal with, among other things, picketing aimed at employers and employees wholly unconnected with a lawful strike. On the other hand, subsection 2 of 76 is aimed at permitting, among other things, picketing arising out of and related to a lawful strike. Some integrating and melding of purpose is therefore required in applying these various sections. Industrial relations experience has proven that neither purpose can be pursued to the exclusion of the other particularly in light of customs, practices and psychology surrounding the activity of picketing. Subsection 2 clearly protects, for example, picketing at a single employer location such as a plant or manufacturing setting where certain employees of the employer are on strike and picketing is aimed at fellow employees, suppliers, customers and others providing services to the struck enterprise. The Board has gone even further holding that picketing by employees on a lawful strike is permissible at locations of their employer other than the location at which they are employed. See Canteen of Canada Limited, supra. and George Wimpey (Canada) Limited, supra. Whether or not this approach has been too sweeping in its terms we do not need to decide on the facts before us. The causes for picketing are also infinite in variety as is the commercial activity which attracts picketing. Accordingly, broad general pronouncements are not very appropriate. See, for example, Local 761, I. U.E. v. N.L.R.B. (1961), 48 LRRM 2210; Sailors' Union of the Pacific (Moore Drydock Co.) (1950), 27 LRRM 1109; and Beatty, Secondary Boycotts. A Functional Analysis (1974), 52 Can. Bar Rev. 388. The transfer of struck work from one location to another may present compelling reasons for expansive picketing whereas the picketing of another location involved in a totally different activity might have to stand or fall on the rationale that employees are entitled to picket an employer's entire economic domain. See Williams v. Aristocratic Restaurants Ltd., 1951 CanLII 24 (SCC), [1951] S.C.R. 762; Brown, Picketing: Canadian Courts and The Labour Relations Board of British Columbia (1981), 31 U.T.L.J. 153. On the other hand, there can be little doubt that direct employee picketing of a geographically removed secondary employer's premises is not protected by section 76(2) subject possibly to considerations of a roving primary situs or ally considerations. See Wescraft Manufacturing Ltd., [1975] 2 Can. LRBR 324 and Paterson, Union Secondary Conduct: A Comparative Study of the American and Ontario Positions,(1973), 8 U.B.C. Law Rev. 77 at 81. While it may be that a clearly secondary and uninvolved employer can come before this Board for a direction to require his employees to cross the picket lines, such a remedy is not always entirely adequate particularly in relation to suppliers and others and we see little justification for placing the employees of a secondary employer in the dilemma of choosing between their loyalty to the labour movement and their legal obligations. Section 76 was designed to remove the source of the problem, i.e. employee directed secondary picketing. See Arthurs, Labour Law-Secondary Picketing-Per Se Illegality-Public Policy (1963), 41 Can. Bar Rev. 573 at 584. It is only since the expansion of the Board's remedial authority that the problem has become one falling within the Board's responsibility. In this respect, we think the reliance of Canteen of Canada Ltd. in Ford Motor Co. of Canada Ltd. v. Browning(1978), 1978 CanLII 2179 (ON HCJ), 86 D.L.R. (3d) 579 at 581 was understandable but not warranted. Accordingly, Canteen of Canada must be read in light of the instant decision.
Moreover, in the context of province-wide bargaining in the construction industry we are reluctant to hold that contractors working on a common construction site but otherwise unrelated to a dispute involving another trade also located there lose the protection provided for by sections 74 and 76(1). Nor, with the advent of province-wide bargaining, do we accept that section 76(2) permits unrestricted picketing directed at employees of employers unconnected with the labour relations dispute other than by geography provided that separate entrances can be established for such employees and provided further that the work of the striking trade or trades is not being performed. In embarking in this direction the Board must be sensitive to the custom and practices of trade unions and to the psychology permeating labour relations conflict. However, we see little justification for unrestricted common situs picketing in province-wide bargaining where the work of the striking employees is not being performed and the employers adversely affected are not connected with the negotiations. Such employers are not party to the negotiations and can have no real control on bargaining postures. Picketing directed at such employees and employers is in every sense secondary and not connected with a lawful strike. Indeed, we note that Hamilton and Toronto locals do not see a need to picket other craft employees even of multi-trade contractors unless their work is being performed. Thus, in the circumstances of this case, and where the picketing, either physically or visually, was not limited to single trade mechanical contractors and the common emloyer multi-trade contractors, we find and declare that the officers of the respondent trade union intended to cause an unlawful strike of trades employees employed by employers who are not part of the mechanical trades negotiations and that, to the extent that the picketing is directed at and interfering with such employees, the picketing cannot be said to be in connection with a lawful strike. However, on the very limited facts before us, we are not prepared to say that the multi-trade contractors involved in bargaining with the employee bargaining agency of the respondent local may also seek protection under sections 74 and 76(1). While there may be additional detail and argument on how the construction industry is different than a normal industrial setting where various employee groups of a single employer are employed in proximity to each other and therefore properly subjected to picketing, we are not prepared to distinguish the construction industry in this respect at this time. This case should not be taken as a signal to parties outside the ambit of province-wide construction industry negotiations to begin establishing reserved gates in an effort to insulate themselves from primary picketing. This decision is very much centered on the needs and practices of a particular segment of the construction industry. Finally, because of the somewhat unprecedented nature of this application, we view our findings as speaking to the future and no other relief is justified for what has occurred to date.
Having regard to all of the foregoing, the Board makes the following order:
The Board, subject to paragraphs 2, 3 and 4, directs and orders that the officers, officials or agents of the respondent, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 663, and any other person having notice or knowledge of this direction and order, cease and desist from establishing or maintaining a picket line, picketing or doing any other act which they know or ought to know, as a reasonable consequence of such act, other persons will engage in an unlawful strike at construction projects in the ICI sector of the construction industry in the County of Lambton at which employers for whose employees the respondent holds bargaining rights are working or have worked within the previous six months, save and except at the entrances to the construction projects for employees of such employers until a provincial agreement binding upon the applicant and respondent is entered into or until such further orders or directions, if any, are made by the Board.
Paragraph 1 of this direction and order shall not apply to a construction project until one entrance to the project is established for employees of employers whose employees are represented by the respondent and another entrance to the project is established for all other employees employed by other contractors.
Paragraph 1 of this direction and order shall not apply to a construction project on which work performed by members of the respondent prior to the strike is being performed.
Paragraph 1 of this direction and order shall not apply to a construction project where access has been refused to a designated official of the respondent for the purpose of determining whether any of the work performed by members of the respondent prior to the strike is being performed.
The Board retains jurisdiction to deal with any differences between the parties arising out of the interpretation of this order and direction.