Mechanical Contractors Association Ontario v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, 1982 CanLII 885

Mechanical Contractors Association Ontario v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46

[1982] OLRB Rep. June 941

0440-82-U; 0441-82-U; 0442-82-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 46, Sikora Mechanical Ltd., and Adam Clark Co. Ltd., Respondents; Mechanical Contractors Association Ontario: Mechanical Contractors Association Zone 7 Kitchener, Applicant, V. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527; J. Porter, Respondents; 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 46, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and W. A. Stephenson Construction Co. Ltd., Respondents

BEFORE: George W. Adams, Q. C., Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: R. A. Werry and J. McCarron for the applicants; Stanley Simpson and J. Porter for the respondents United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527; J. Porter; Philip J. Wolfenden and Bruce Walker for the respondent Adam Clark Co. Ltd.; L. C. Arnold and W. Howard for the respondent United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Brian P. Smeenk and R. Sikora for the respondent Sikora Mechnical Ltd.; no one appearing for the respondents United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and W. A. Stephenson Construction Co. Ltd.

DECISION OF THE BOARD; June 14. 1982

Decision

1All three files involve similar problems and request relief under sections 135 and 89 of the Labour Relations Act. The three matters were consolidated and heard as one.

2The applicant, Mechanical Contractors Association Ontario, is a designated employer bargaining agent representing employers whose employees in the industrial, commercial and institutional sector of the construction industry are presented by the respondent 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 its locals including the respondents Local 46 and Local 527. The applicant is currently engaged in collective bargaining for a province-wide industrial, commercial and institutional (hereinafter referred to as "ICI") agreement and on or about May 25th, 1982 a province-wide strike was called or authorized by the designated employee bargaining agent made up of the respondent United Association and the Ontario Pipe Trades Council. It is alleged that, notwithstanding the province-wide strike, the respondent Local 46 as an affiliated bargaining agent has continued to supply employees who work within the industrial, commercial and institutional sector to the respondents Sikora Mechanical Ltd. and Adam Clark Co. Ltd. contrary to section 146(2) and section 148(1) of the Labour Relations Act. It is alleged that the respondent Sikora Mechanical Ltd. is engaged in ICI construction at the Rennaissance Hotel located at Kennedy Road and Highway 401 in Metropolitan Toronto. It is further alleged that the respondent Adam Clark Co. Ltd. is engaged in ICI construction at the Gulf Oil Refinery (Clarkson Refinery) located at Southdown Road and Highway 2 in Clarkson, Ontario.

3The respondent Local 527 is also an affiliated bargaining agent of the employee bargaining agency for mechanical tradesmen and is subject to the terms of the designation issued to the aforementioned employee bargaining agency as is Local 46. The respondent J. Porter is the business manager of the respondent Local 527. It is alleged that Win. Roberts Electrical and Mechanical Limited is the mechanical subcontractor on the Waterloo Motor Inn construction project located at 476 King Street North in Waterloo. Win. Roberts Electrical and Mechanical Limited, it is alleged, was bound by the mechanical trades provincial agreement which expired on April 30th, 1982 and for which negotiations are underway for its renewal. It is further alleged that notwithstanding the province-wide strike desired by the employee bargaining agency and called and authorized by all its affiliated bargaining agents, the respondent J. Porter is continuing to supply members of Local 527 to Win. Roberts Electrical and Mechanical Limited on the aforementioned construction project in violation of section 148(1) and section 146(2) of the Labour Relations Act.

4The applicant alleges that the respondent W. A. Stephenson Construction Co. Ltd. works within the ICI sector and employs members of the respondent Local 46 and that the respondent company is covered by the terms of the provincial agreement expiring April 30th, 1982. The applicant submits that the respondent company is engaged in construction at the Lakeview Water Pollution Control Plant located at Highway2and Dixie Road, Mississauga, Ontario and that the work in question is within the ICI sector. It is further alleged that the respondent United Association and the respondent Local 46 are supplying men to the respondent company notwithstanding the calling and authorizing of a province-wide strike contrary to sections 146(2) and 148(1) of the Act.

5The material provisions of the Act provide:

146. (1) An employee bargaining agency and an employer bargaining agency shall make one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

(3) Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978.

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.

(2) Where an employer bargaining agency desires to call or authorize a lawful lock-out, all employers it represents shall call or authorize the lock-out in respect of all employees employed by such employers and represented by all the affiliated bargaining agents affected thereby in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(3) and no employer shall lock out such employees except in accordance with this subsection.

6Bruce McBride, President of W. A. Stephenson Construction Co. Ltd., testified that the company has been a union contractor since the 1950's. The company obtains its employees from the respondent Local 46. It is currently involved in construction of the Lakeview Sewage Treatment Plant in Mississauga, Ontario and in employing 26 employees who are members of Local 46. The job has been in progress for 18 months and these employees have been working on it. McBride was aware of the province-wide strike and indeed his employees walked off the job on Tuesday, May 25th and Wednesday, May 26th, 1982 but returned to work on Friday, May 27th. He testified that he is paying the same rate to them now as under the expired provincial agreement and that prior to the expiry of this agreement on April 30th, 1982 the work in question was being performed under the mechanical trades provincial agreement. McBride testified that prior to the strike he spoke with Mr. Russ St. Eloi, Canadian Director of the United Association and asked him what the position of his company would be with respect to the "national agreement" at the Lakeview project. Eloi confirmed that the union would not be striking that project. On the commencement of the strike, McBride wrote to Local 46 indicating that his company was a "national agreement contractor" and that the national agreement provided for no strike or lock-outs during its term. He asked the union to advise when the men would be back to work. He further testified that his office received a telephone call from someone advising that the men would be back to work forthwith. The men reappeared the following day. There is a union steward for Local 46 currently working on the job. The "national agreement" was introduced into evidence and the last copy was signed in 1977. It provides for the company picking up the local United Association agreement applicable to an area in which a project is being undertaken. However, since provincial bargaining, the company has "picked up" the provincial agreement for its ICI projects. The company operates exclusively in Ontario.

7Reiner Sikora testified on behalf of Sikora Mechanical Limited. He is the president of the company and it is a unionized mechanical contractor. He has four jobs in the Metropolitan Toronto area and the one commercial project is the Rennaissance Hotel at Highway 401 and Kennedy Road. He is in contractual relations with Wharton Enterprises Inc. (hereinafter referred to as "Wharton"), the owner and general contractor on the project. Sikora testified that the project is 60% unionized and that he was advised by Wharton that the owner's schedule of commitments would require the replacement of Sikora by a non-union company if Sikora could not complete the work. Sikora is four weeks behind because of picketing by other trades during the previous two months. Mr. Sikora was aware that a province-wide strike was in progress but testified that a number of his men who are members of Local 46 were continuing to work for him. He also testified that there was a union steward on the job. He testified that he employed 46 men prior to the strike and that all 46 men engaged in a strike on May 25th, May 26th and May 27th. However, after talking to his foreman about how the men might work during the strike, it was suggested to him to write a letter to Local 46 to seek permission to operate during the strike. Accordingly, by letter dated May 26th, 1982 he wrote to a business agent of Local 46, Mr. W. Howard. The letter reads:

U.A. Local 46, 936 Warden Avenue, Scarborough, Ontario, M1L 4C9.

Attention: Mr. W. Howard

Dear Sir:

Re: Renaissance Hotel Project - Kennedy Road and Sufference

We would like to ask for permission to work on the above project during the strike.

The reason for our request is that the owner-builder is non-union and sub-lets contracts to non-union contractors.

We feel that he will protect his investment and look for other sources to complete his project. I do not have to point out the consequences it could have.

We would appreciate if you could grant our request. Hoping to hear from you about your decision.

Yours truly,

SIKORA MECHANICAL LIMITED

Mr. Sikora testified that he did not get a reply to this letter although 10 of his 28 men returned on the Friday, i.e. the day after he wrote his letter. He said he was paying the same wages as he had been paying before the strike in accord with the expired provincial collective agreement.

8Bruce Walker is the project manager for Adam Clark Co. Ltd. (hereinafter referred to as "Adam Clark"). Adam Clark is a mechanical contractor which has several contracts with Gulf Canada Products Company at Clarkson, Ontario. Prior to the strike three of these jobs were employing United Association members from Local 46 under the provincial agreement. The job in question was commenced in early May with a completion date of Friday, June 4th, 1982. Seven employees who are members of Local 46 were employed on this job. Rick Walker is employed by Adam Clark and was the superintendent for this job. He spoke with Shawn O’Ryan, a business agent for Local 46 on the Friday prior to the strike and asked if there was a possibility that Adam Clark could complete the Gulf Canada job as Gulf Canada had requested. O’Ryan advised him that such was a possibility but that it had to be brought to the strike committe's attention in letter form. Accordingly, the following letter was sent to Mr. Howard, the Business Manager of Local 46 by Mr. Walker. He attached a letter to Adam Clark from Gulf Canada urging that the work be completed. This letter is also reproduced:

May 25, 1982

Local 46 Plumbers & Steamfitters Union 936 Warden Avenue Scarborough, Ontario M1L 4C9

ATTENTION: Mr. W. Howard Business Manager

Gentlemen:

Adam Clark Company (1982) Inc. is in the midst of completing the instrumentation portion of shutdown work on the C.O. boiler at Gulf Canada Refinery at Clarkson.

This particular shutdown must be completed by June 4, 1982. If we, as Adam Clark, are unable to complete this work within this time frame, Gulf Canada will undertake to have it done by others.

This job consists of installing pneumatic tubing to certain particular instruments and control panels related to the operation of the C.O. boiler. This work is approximately 80% complete.

Our manpower on this particular job is six Local 46 workers. We, as Adam Clark, wish to meet our obligation to complete this instrumentation on schedule with Union trades people. We request Local 46 permission to proceed with this work as soon as possible. Any questions related to this work may be directed to the writer at 822‑4660, or to Mr. Arvo Vahtra of Gulf Canada at 822-4222.

Yours very truly,

ADAM CLARK COMPANY (1982) INC.

W. B. Walker Project Manager

May 25, 1982

Adam Clark Company Ltd. 1605 Main St. West Hamilton, Ontario L85 4L1

Attn.: Mr. Bruce Walker - Project Manager

Gentlemen:

Re: Shutdown Work at the CO Boiler - AFE 2181 - P.O. 87978

In regard to the above, we would like to draw your attention to the importance of completing your instrumentation and piping work on or before June 4, 1982.

For a safe and enviromentally acceptable refinery operation, the CO Boiler must be ready for startup on that date.

Please endeavour to comply with this urgent request.

Yours very truly,

GULF CANADA PRODUCTS COMPANY,

J. R. Forsdike, P.Eng. Refinery Engineer

After sending these letters, Walker spoke to another business agent, Bruce Sneed, on Wednesday, May 26th, the second day of the strike and asked if any word had been received from the strike committee. Sneed replied that another official of the union, Bill Weatherup, was going down to the job site to research it more thoroughly before giving approval. Walker indicated that Weatherup attended the job site about noon that same day and following his attendance there Walker was advised by one of his employees that Adam Clark had permission to do the job and that it should start as soon as possible. Walker viewed the work as an emergency matter in that the manual operation of this particular boiler on which Adam Clark was working would cause considerable pollution to be emitted contrary to various environmental laws and could be unsafe. It would appear that the refinery had been shut down for the period of the construction and that Gulf Canada had designated June 4th as the startup day. The work had been completed by the time of the hearing.

9There was some suggestion that the work in question was maintenance. However, it was being performed under the terms of the mechanical trades provincial agreement or the extension of this provincial agreement prior to the strike and on further examination Walker admitted that Adam Clark was installing new instrumentation as well as altering old pneumatics. On the evidence before us, we are satisfied that it is ICI construction work. When questioned by Fred Whyte of the Mechanical Contractors Association in Hamilton about the work, Walker told him that Adam Clark had approached the union and had been given permission to work. The employees, all members of Local 46, were employed on the basis of the terms and conditions of employment of the expired provincial agreement.

10Mr. B. D. Wilson, Mechanical Division Manager of Win. Roberts Electrical and Mechanical Ltd. (hereinafter referred to as "Win. Roberts"), testified that the company had eight projects in operation prior to the strike and covered by the mechanical trades provincial agreement. Some of these projects were in Toronto and others in the Kitchener area. He testified that none of the projects were proceeding at the moment. He testified that the company's contract for the mechanical work on the Waterloo Motor Hotel in Kitchener had been "lifted" on May 28th. That contract was three-quarters complete but the company had not received a signed copy of the contract from the owner, a Mr. Lawrence Bingeman of Freuer Homes. He testified that his employees had walked off the side on May 25th and remained off for the 25th, 26th and 27th and on the 28th he was advised that the company was no longer responsible for that contract. He said it was possible that the company might get the contract back after the strike. He said the general contractor asked him to man the project during the strike but he refused and made no suggestion how the general contractor might man it. However, the evidence reveals that three trailers of Win. Roberts have been left on the site; that the trailers and tools appear to be being used; and Wilson testified that although aware of this possibility he had taken no steps to investigate the matter. Wilson testified that he did not know whether his company's tools were being used and whether rent or a service charge was being paid for the use of such tools. The employees employed by Win Roberts are supplied by Local 527. Mr. Jack Porter is the Business Manager of Local 527. He testified that he had heard "a rumour" that the mechanical work was being done at the Waterloo Motor Hotel but that he did not know who was doing it. He apparently drives by the site each day. He further testified that he did not know whether the local's business agent, Tom Crystal, who reports to him and who is responsible for the ICI sector, had investigated the matter. He denied that Local 527 was supplying men to the site but he did not know whether Crystal had attended at the site to determine whether the men were Local 527 members and to instruct them not to work because of the province-wide strike. Local 527 has established a strike committee to monitor all jobs sites and establish picket lines where work is being performed by others. Porter testified that he was not aware of any request for a picket line at the Waterloo Motor Hotel.

11Bud Fraser of the Mechanical Contractors Association in Kitchener testified that after finding the plumbers' trailer open at the Waterloo Motor Hotel building site he called Tom Crystal and asked why he had not pulled his men off the job. Crystal replied that he had made a deal with Mr. Bingeman that if he put union trades on the job the union guaranteed no trouble for the completion of the work. Crystal went on to say that he should be thanked for getting the job to go union. Fraser testified that he was at the job site last Thursday and discovered the plumbers' trailer was being openly used together with tools and equipment. Bingeman ordered him off the property.

12The provincial agreement for the mechanical trades expired on April 30th, 1982. A no-board report was issued on May 7th, 1982. The parties were in a legal strike and lockout position at 12:01 am. on May 2 1st, 1982. Because of the intervention of the long weekend no affect from the strike that was called was felt until May 25th, 1982.

13On behalf of the applicant it was argued that in all these situations it had established "an arrangement" contrary to section 146(2) of the Act. Counsel submitted that a prima facie case of at least a tacit arrangement had been made out and all respondents had declined or failed to call evidence to rebut this prima facie case. It was further submitted that there was little doubt that all the contractors were working with United Association members and with the tacit approval of the trade unions contrary to section 148(1) in that they had a continuing duty "to call or authorize" a province-wide strike. It was submitted that the so-called national agreement to which W. A. Stephenson was a party was contrary to section 146(1) in the ICI sector in the province of Ontario and was therefore null and void. Moreover, the supply of men pursuant to this agreement was contrary to section 148(1). The applicant sought a declaration that the province-wide strike was unlawful. It also sought orders directing the contractors to cease and desist from working and the unions to cease and desist from supplying their members for the duration of the strike.

14On behalf of Local 46 it was submitted that there was no evidence before the Board establishing an arrangement with that local trade union. It was submitted that with respect to the Lakeview Sewage Control Plant the evidence did not even demonstrate that the work fell within the ICI sector. While letters were sent by Sikora and Adam Clark to Local 46, counsel for Local 46 emphasized that there had been no written or oral arrangement. While the men might be working with the tacit approval of Local 46, such fell short of the agreement or arrangement required by section 146(2). Counsel submitted that it was clear on the evidence that a province-wide strike had been called or authorized by the affiliated bargaining agents and that there was nothing in the legislation to prevent employees from returning to work of their own volition. It was further submitted that where the Legislature intended to prevent the supply of men during a strike it would have done so specifically as in section 131(2) of the accreditation provisions. Not having been specific in the province-wide bargaining sections of the legislation, the Board was urged to presume that the Legislature did not intend to interfere with such activity. Finally, it was submitted that once an affiliated bargaining agent had called or authorized a strike there was no continuing obligation to see that the strike continued and that the Board could not properly read such an ongoing obligation into the section.

15Counsel for Local 527 also submitted that the quiet acceptance by an affiliated bargaining agent that its members were working during a strike did not constitute an arrangement contrary to section 146(2) or section 148(1). He submitted that it was a contradiction in terms to say that men who were working were engaged in an unlawful strike. Counsel stressed that the evidence gave no hint of a selective strike to which, in his submission, section 148(1) was directed. All the situations described to the Board were isolated circumstances showing no province-wide pattern he submitted. Counsel pointed out that in the Kitchener area it had not been established that members of Local 527 were working on the Waterloo Motel job and that clearly there had been no arrangement between Win. Roberts and Local 527. Counsel objected to any reliance being placed on the conversation of Fraser with Crystal because Crystal had not been named as a respondent nor had particulars been given with respect to this point. However, we note that these latter objections were not taken at the outset of the hearing or as the evidence was received and for this reason cannot be accepted. That evidence is properly before us.

16On behalf of Adam Clark it was submitted that the Legislature never intended black and white determinations under section 148. He suggested that there had to be exceptions made for situations of emergency or peculiar fact situations. It was submitted that it was not clear that the Adam Clark work for Gulf Canada was in the ICI sector; that the situation did not rise to the level of an arrangement contrary to section 146(2); and that there was no evidence suggesting an attempt to engage in a selective strike contrary to section 148(1). On behalf of Sikora Mechanical it was submitted that there was nothing in the Act to prevent an employer from attempting to operate during a strike; that section 146(2) dealt only with attempts to substitute an agreement for the provincial agreement in contrast to an interim arrangement pending the negotiation of a provincial agreement; and that there was nothing in the statute preventing individual employees from responding to an employer's request that they work. Counsel stressed that there was no evidence of a purposeful failing to supervise a strike on behalf of the various trade unions. Counsel for all respondents asked the Board to exercise its discretion under section 89 having regard to the isolated nature of the circumstances and the fact that the amount of work being done was small and in no way indicative of a selective work stoppage or a concerted attempt to avoid the consequences of the ICI negotiations.

17In Jen-Mar Construction Limited, [1978] OLRB Rep. July 647 an employer subject to province-wide bargaining signed a document presented to him by a union officer of an affiliated bargaining agent agreeing to pay carpenters and carpenters' apprentices an extra 85 cents per hour pending the completion of negotiations of the carpenters' provincial agreement which at that time involved strike activity province-wide. Subsequent to the execution of this document, Jen-Mar's employees returned to work while the remainder of the carpenters in the ICI sector were out on a province-wide strike. The employer bargaining agency complained before the Board that this conduct contravened section 133(2) (now section 146(2)) of the Act, as being an "other arrangement". The Board agreed and stated at page 653:

Mr. Varty's conduct with respect to Jen-Mar and other employers in the Niagara Peninsula was an attempt to conclude another arrangement affecting employees represented by an affiliated bargaining agent, Local 38, other than a provincial agreement. The employer bargaining agency and the employee bargaining agency are in the process of endeavouring to conclude a province-wide collective agreement for carpenters and apprentice carpenters (other than millwrights) and Mr. Varty's conduct with respect to Jen-Mar has the effect of conferring a benefit on Jen-Mar which is not lawfully available to the employers who are represented in bargaining by the complainant. Mr. Varty and Jen-Mar briefly created islands of privilege whereby Jen-Mar and certain members of Local 38 were insulated from economic loss which other employers and other employees were to suffer as a result of a lawful strike. Such conduct by Mr. Varty and Jen-Mar is inherently destructive of the concept of province-wide bargaining. It causes disruption among the employers who are represented by the complainant and may well cause similar disruption among the affiliated bargaining agents who are represented by the employee bargaining agency.

[our emphasis]

18The Board went on to note in paragraph 16 that the form of the agreement or arrangement made no difference, its effect and prohibition by the Act was the same. It was argued before us that the supply of men by an affiliated bargaining agent during the course of provincial bargaining and a province-wide strike did not contravene any specific provision of the Act and that sections 146 and 148 were deficient in that where the Legislature had intended to preclude such union activity it did so specifically as in the accreditation provisions such as section 131(2). The respondents also placed reliance on the absence of a formal written agreement and any agreement to pay more than the expired provincial agreement as in the Jen‑Mar case. However, we agree with the earlier holding of this Board in Jen-Mar at paragraph 17 that province-wide bargaining represents a far more complicated system of bargaining when compared to bargaining under a certificate of accreditation and that, in this context, the more general wording of section 146(2) constitutes a more comprehensive regulation of that process than was envisaged with respect to accreditation. In other words, given the importance of province-wide bargaining and the need for uniformity in the bargaining process, the use of more general language in section 146(2) could only have been intended to provide the Board with a much more broader mandate in dealing with all manner of activity that impairs the integrity of province-wide bargaining. An arrangement contrary to section 146(2) need not be written nor need it involve compensation over and above the provincial agreement.

19It was also argued that the supply of men on terms and conditions of employment analogous to the expired provincial agreement was no different than an extension agreement typically employed in the collective bargaining negotiations and, as such, was not a device intended to replace or substitute for a provincial agreement contrary to the purpose of section 146. We disagree. Section 52(2) of the Labour Relations Act specifically provides for an agreement to continue the operation of a collective agreement or any of its provisions while parties are bargaining for its renewal. Such agreements clearly are a substitution for a collective agreement or a provincial agreement in the context of the ICI sector of the construction industry. Under section 143 of the Act, where an employer bargaining agency has been designated under section 139 as has the applicant in this case to represent a provincial unit of employers, the Act provides that all rights, duties and obligations under the Act of the employers for which the employer bargaining agency bargains shall vest in the agency but only for the purpose of conducting bargaining and concluding a provincial agreement. We understand this language to mean that the right to conclude an interim or extension agreement under section 52(2) vests with the employer bargaining agency as does the same right of an affiliated bargaining agent vest with the employee bargaining agency under section 142. Accordingly, local parties, employers and local trade unions, in the context of provincial bargaining in the ICI sector, lack the right to conclude interim or extension agreements unless approved or authorized by the respective employee and employer bargaining agencies. Where such unauthorized agreements are entered into, they are in breach of section 146(2).

20Turning to section 148(1), it was submitted that once an affiliated bargaining agent calls or authorizes a strike pursuant to section 148(1) there is no continuing obligation to administer that strike by reasonable efforts to ensure that all affected employees participate in it. We again disagree with this submission. A somewhat analogous or similar situation arises under collective agreements where trade unions promise that there shall be no strike during the term of a collective bargaining agreement. Many cases have had to deal with the trade union's obligation in relation to a "wild cat" strike which it has not called or authorized. Boards of arbitration have viewed no strike pledges as an implicit promise by the trade union that it will not, through its proper officers, sanction or direct or condone or encourage stoppages by any persons in the bargaining unit. See Re Polymer Corporation and Oil and Chemical and Atomic Workers Int'l Union, Local 16-14 (1960), 10 L.A.C. 51; 1962 CanLII 3 (SCC), 33 D.L.R. (2d) 124 (S.C.C.). This result flows from what might be termed an ordinary canon of contract interpretation that a party to an agreement speaks for itself and makes itself answerable for its own conduct or misconduct unless the terms of the agreement clearly spell out an acceptance of liability for conduct or misconduct of others. Thus, every wild cat strike does not, in and of itself, trigger trade union liability. However, boards of arbitration have unanimously considered no strike pledges by trade unions to include an implicit obligation by the trade union and its officials not merely to refrain from instigating or promoting a strike but also an obligation to act promptly in the exertion of reasonable efforts to bring to an end any strike which may have begun spontaneously or without the union's encouragement or authority. In Re U.E. W and Canadian General Electric Company Limited (1951), 2 L.A.C. 608 at page 611 Professor Laskin (as he then was) articulated this obligation in the following terms:

It need hardly be said that in order to discharge its affirmative obligation it is not enough for the union to go through the motions of giving back to work orders without more. In the case of a strike or stoppage called by a union, its liability is fixed at the very time the prohibited act occurs. In the case of a spontaneous or wild cat strike or stoppage, liability of the union depends on the action taken by it, having regard to its responsibility for its members and for non members. There must be prompt attempts to get the employees back to work. The nature and extent of these attempts will depend on the circumstances and the situation with which the union is confronted. It may well be necessary for the union, if coordinated efforts by its stewards and officers to terminate the stoppage are unsuccessful, to make concerted efforts and to obtain the permission of management to call a meeting on the premises for that purpose. It may be necessary to threaten, and even to take disciplinary measures against particular members of the union. At all events, it would seem that the initial obligation of the union should be to make known to management that the union has not authorized or encouraged the stoppage and thereafter to give continued evidence of this position by manifest steps to bring the stoppage to an end. It may, of course, be finally necessary for the union to report to management that it cannot control its members or other employees, thus leaving it to management to take such action as it sees fit. Such a procedure, in the board's view, is consistent both with union responsibility for contractual undertakings and with employer responsibility for directing the working force. It does not throw an absolute liability on the union but enables it to exculpate itself by tangible evidence of its good faith in meeting its undertaking....

It is our view that an affiliated bargaining agent has an analogous ongoing responsibility to engage in reasonable efforts to ensure that the strike called or authorized continues to be called or authorized and on a uniform basis. It is not enough to call or authorize a strike initially and then to sit back and encourage, through inaction, the return to work of striking employees. An affiliated bargaining agent is obligated to call or authorize the strike in respect of all employees it represents in the ICI and this obligation must be held to be a continuing obligation. Province-wide bargaining takes away responsibility for negotiations from individual employers and unions and places that responsibility in the hands of central bodies. Such multi-party negotiations on a lesser scale were common in the construction industry but the structures were vulnerable to the whipsaw tactics of unions who would seek to break employer coalitions by permitting some employees to work during a strike to the disadvantage of others. Accreditation was a legal response to this problem but it failed because whipsawing and leapfrogging was still possible on a province-wide basis. Hence, the Act was amended to provide for compulsory province-wide single trade bargaining. The trade union's conduct before us is antithetical to any scheme of multi-party negotiations and could not possibly have been left unregulated. Moreover, to guard against the inventiveness of particular parties, general statutory language was used to give the Board a broad mandate to regulate this very important economic process. An affiliated bargaining agent must supervise affected work sites effectively and make reasonable efforts to convey to its members that a strike has been called and that they are not to work. The affiliated bargaining agent clearly cannot, on a selective basis, sanction the working of its members on particular projects by inaction and comply with its obligations under section 148(1). Moreover, where its members refuse to comply with the calling or authorizing of a strike notwithstanding the reasonable efforts of the affiliated bargaining agent, at the very least, the affected affiliated bargaining agents and employee bargaining agency are required to advise the employer bargaining agency that they are unable to control the situation so that the employer bargaining agency is able to exercise its rights vis-a-vis the employers it represents and to call a lock-out if it wishes to impose the uniformity that the affiliated bargaining agents of the employee bargaining agency are unable to achieve having exercised reasonable efforts. Whether an affiliated bargaining agent has taken reasonable steps to call or authorize a strike on a continuing basis must be decided having regard to all of the circumstances.

21On the facts before us, we are prepared to hold that the Canadian National Construction Agreement signed by W. A. Stephenson Mechanical Contractors Limited with the United Association is null and void in the ICI sector of the construction industry in the Province of Ontario in that it constitutes or purports to constitute a collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than the mechanical trades provincial agreement. There can be no dispute that the work in question falls within the industrial, commercial and institutional sector of the construction industry and there is simply no role for agreements other than a provincial agreement. On the basis of this finding W. A. Stephenson and Local 46 are directed pursuant to section 89 to cease and desist acting in accord with the terms and conditions of the aforesaid agreement. We are further of the view that the evidence with respect to W. A. Stephenson indicates that the trade union is supplying men to the Lakeview Sewage Plant construction project and that such action, in and of itself, violates section 146(2) in the case of both parties and section 148(1) with respect to Local 46 alone. The supply of men by an affiliated bargaining agent in the context of a province-wide strike does constitute another arrangement contrary to section 146(2) notwithstanding that it is informal and undocumented. The use of the word "arrangement" was obviously intended to deal with all manner of bi-party relationships that undermine provincial bargaining. In relation to W. A. Stephenson, Local 46 has clearly failed to call or authorize the strike in respect of all employees represented by all affiliated bargaining agents affected thereby in the industrial commercial and institutional sector.

22With respect to Local 527 and J. Porter and the work being performed on the Waterloo Motor Hotel, we find that the trade union is continuing to supply men to that project and therefore has not called or authorized a strike in respect of all employees represented by it in the industrial, commercial and institutional sector of the construction industry contrary to section 148(1). Local 527 and J. Porter through their inaction have supported or otherwise encouraged an unlawful strike. On the basis of Bud Fraser's conversation with Tom Crystal, we are satisfied that Local 527 members are working at the Kitchener site with the approval and consent of Local 527 and J. Porter.

23The Board finds that Local 46 did supply men to Adam Clark on construction work falling within the industrial, commercial and institutional sector at the request of Adam Clark and that the supplying of such employees and the employing of them constitutes a breach of section 146(2) being an other arrangement. Both Adam Clark and Local 46 are directed pursuant to section 89 to cease and desist in acting in respect of this arrangement in respect of any work in the ICI sector. The Board further finds that Local 46 in supplying such men breached section 148(1) in that it did not call and authorize a province-wide strike in respect of all employees represented in the industrial, commercial and institutional sector of the construction industry having regard to the continuing nature of this statutory obligation. As we indicated above, the duty under section 148(1) is an ongoing duty requiring positive and reasonable steps to ensure that a strike continues to be called in accordance with the desires of the employee bargaining agency.

24Turning to Sikora Mechanical Ltd., the Board finds that Local 46 is supplying men to Sikora Mechanical and that the supply of men and the employing of these men by Sikora Mechanical constitutes a breach of section 146(2) being an other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement. Pursuant to section 89 both Local 46 and Sikora Mechanical Ltd. are directed to cease and desist in acting in accord with this arrangement. The Board further finds that, in supplying men to Sikora Mechanical, Local 46 breached section 148(1) of the Labour Relations Act in that it has not called or authorized a strike in respect of all employees represented in the industrial, commercial and institutional sector of the construction industry. Not only do we find that Local 46 in supplying men to Sikora Mechanical has breached section 148(1), but in failing to take positive and reasonable steps to ensure that a strike of such employees continues to be called this section has been violated.

25Having regard to the fact that the circumstances before us appear isolated and rather minor, we are content to give our declarations, orders and directions, based on the above finding, pursuant only to section 89. We also think in future cases that it would be prudent for an employer bargaining agency to call or authorize a province-wide lock-out after identifying such situations of concern and before complaining to this Board.

26The Board therefore declares, orders and directs:

1. The national agreement between W. A. Stephenson Construction Co. Ltd. and the United Association is null and void in the ICI sector of the construction industry and W. A. Stephenson Construction Co. Ltd. and the United Association and Local 46 and its officers and agents are directed to cease and desist acting in accordance with its terms. Local 46 and its officers and agents are further directed to cease and desist supplying men and otherwise acting contrary to section 148(1) of the Act by failing to take reasonable steps to call or authorize a strike as desired by the employee bargaining agency.

2. Sikora Mechanical Ltd. and Adam Clark Co. Ltd. and Local 46 and its officers and agents are directed to cease and desist acting in accord with all other arrangements contrary to section 146(2) of the Act and Local 46 and its officers and agents are directed to cease and desist supplying men to Sikora Mechanical Ltd. and Adam Clark Co. Ltd. and otherwise acting contrary to section 148(1) by failing to take reasonable steps to call or authorize a strike as desired by the employee bargaining agency.

3. Local 527 and its officers and agents are directed to cease and desist acting contrary to section 148(1) by failing to take reasonable steps to call or authorize a strike as desired by the employee bargaining agency.