[1982] OLRB Rep. May 779
1496-80-U; 1501-80-U Tecumseth Insulation Services Ltd., and Christian Labour Association of Canada, Complainant/Applicants, v. Toronto Building and Construction Trades Council, International Brotherhood of Electrical Workers, Local 353, International Union of Operating Engineers, Hoisting Division, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, International Association of Bridge, Structural and Ornamental Iron Workers, Local 721, Labourers International Union, Local 506, Carpenters District Council of Toronto and Vicinity affiliated With United Brotherhood of Carpenters and Joiners of America, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, and nineteen named individuals, Respondents, v. The Master Insulators' Association of Ontario, Incorporated, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: William S. Challis, Ernest Belanger, Susan Collins, O. V. Gray, Ed Vanderkloet and John Adema for the complainants/applicants; B. Fishbein, G. Whyte, J. D. Johnson, B. Mc Queen and B. W. Adams for the respondents; no one for the intervener.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON; May 28, 1982
The Christian Labour Association of Canada is hereby added as a complainant/ applicant in these proceedings.
These are consolidated matters involving an application for a cease and desist order under section 135 of the Labour Relations Act, and a complaint under section 89 of the Act seeking damages and other forms of relief, including widespread dissemination of an official notice of the results of these proceedings. The complainant Tecumseth is an employer of members of 1 he complainant Christian Labour Association of Canada. The complainants in essence allege that the respondents by closing down job sites at which the complainant Tecumseth is engaged, through unlawful picketing or other means, are engaged in a concerted effort to put Tecumseth out of business, or at least to prevent it from operating with members of the complainant Christian Labour Association of Canada as its employees. The matters were filed in September and October respectively, of 1980, but were then made the subject of unsuccessful section 1(4) proceedings at the instance of the respondents.
The Board then on April 5, 1982, heard argument on the motions of the respondents to strike out all or part of the complainants' claims on the basis that they did not make out a prima facie case for the remedy sought.
The Board notified the parties by telex through the Registrar on April 8, 1982, that the respondents' motions were dismissed (Board member Kobryn dissenting). The Board was prepared at the continuation of hearing on April 13, 1982, to deliver brief oral reasons for its decision to dismiss. The Board was advised at the hearing, however, that counsel for the respondents had suddenly taken ill, and that all parties were agreed to an adjournment on terms not here relevant. The Board in the circumstances decided not to issue its reasons orally, but rather to do so in writing prior to the resumption of hearings. Those reasons are as follows.
The respondents' main ground for seeking dismissal of the proceedings was that no picketing, strike or other activity of the kind complained of has been alleged since, at the latest, December of 1980. The respondents relied upon the Board's practice of not granting a declaration or direction, except in certain defined circumstances, where the unlawful conduct complained of has ceased by the time of the hearing. The respondents argued further that the complainant cannot ''revive'' the proceedings simply by adding a claim for damages.
As the respondents point out, the Board in most situations has declined to issue a declaration or direction in connection with an unlawful strike where, by the time of the hearing, the conduct complained of has ceased. As in Acoustical Association of Ontario, [1975] OLRB Rep. July 539, e.g., at paragraphs 7 and 8:
Given the function to be performed by the declaration, the Board has been reluctant to grant a declaration where a strike has been settled before the hearing of the application...
There are some situations, however, where a declaration will be granted even though the strike is settled. Circumstances such as a past pattern of unlawful strikes or a reasonable likelihood that strike activity will recur have overridden the Board's reluctance to intervene once a strike is settled. Recently, in Norfolk Hospital Association, supra, the Board has added another exception, that is where the conduct in question has implications that extend beyond the immediate bargaining parties. In this type of situation, the declaration serves not only to warn the immediate parties but also to warn others in similar bargaining situations.
There are sound labour-relations reasons underlying this policy of demurrer, as articulated, for example, in Norfolk Hospital Association, [1974] OLRB Rep. Sept. 581, at paragraph 23:
It has often been stated that a declaration is not meant to be punitive, but rather, is intended primarily as an aid to the settlement of labour disputes; a device, in short, to encourage resolution of the differences and the return to lawful courses of conduct. The Board must be cautious that its intervention, by way of declaration, will play some constructive role, rather than disrupt a relationship which, by the time of the hearing, has stabilized....
See also Acoustical Association of Ontario, supra, at paragraph 7, where the Board elaborated as follows:
The reasons for this approach are fully explained in both Beatty Bros. (1965), 66 CLLC ¶ 16,049 and National Refractories (1963), 63 CLLC ¶ 16,276. The general thrust of these reasons is that, once the strike has disappeared, then, as a general rule, no useful purpose can be served by a determination of the legality of the activity. In other words, the declaration has been regarded as a procedure for preventing the continuation of strikes, and not as a procedure for a retrospective assessment of the legal position of one of the bargaining parties. To take this latter approach would create the danger that intervention by the Board might upset the settlement already reached...
An analysis of the Board's cases dealing with this principle confirms that they generally rest upon the Board's conclusion that the issue underlying the unlawful conduct has been either settled or dissolved, or at least defused to the point where lawful means of resolution, such as a grievance procedure, are being resorted to, and hence no reasonable apprehension of recurring unlawful conduct can be sustained. See, for example, General Contractors of Toronto Builders' Exchange, 59 CLLC ¶1 18,151; Major Masonry and Construction Limited, [1963] OLRB Rep. Sept. 319; Hydro-Electric Power Commission of Ontario, [1965] OLRB Rep. Dec. 645; Bechtel Canada Ltd., [1977] Rep. May 269, at paragraph 23. And, as can be seen, where the unlawful conduct has ceased, the Board has weighed as well the benefit to be derived from the litigation and remedial order arising from the application before the Board, against the possibly detrimental effect that such might have on a continuing and apparently stabilized bargaining relationship. In the present case, neither of these circumstances exist, and the Board can see no overriding labour-relations purpose for deciding prior to hearing the evidence how its discretion may appropriately be exercised, or for declining to entertain the application.
Dealing more generally with the issue of remedy, the Board is not satisfied at this stage that any of the relief sought by Tecumseth is, as argued by the respondents, beyond the Board's jurisdiction. Again, the Board finds no labour-relations purpose in this case to be served by limiting in advance its consideration of what an appropriate remedy might be.
The respondents argue in any event that paragraph (e) of Schedule C of the complaints should be struck on the ground that it seeks to assert the rights of others. That paragraph refers to intimidating or coercing employees of other subcontractors on the complainants' job sites to engage in unlawful strikes, in contravention of section 72 of the Act. (The respondents (10 not challenge the right of the complainants to attack the alleged picket-line activity designed to achieve the same result.) That section provides:
72.-(l) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee...
In the Board's view, insofar as the complaint seeks an order restraining the respondents from seeking by any means, be it picket-lines or otherwise, to cause employees to engage in an unlawful strike, it alleges at the very least a violation of what are now sections 74 and 76 of the Act, which provide:
- 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.-(l) 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.
The complainants are, in this case, clearly persons affected by such action, and thus having status to complain under those sections. Assuming, as one must on this type of motion, that the allegations of the complainants are true, the complainants are in fact the sole objects of this unlawful conduct in which the respondents are engaging.
With respect to the respondent's request for further clarification and particularization of the employer's damage claims, the Board finds nothing in this case to cause it to depart from its normal practice of remaining seized with the damage issue and dealing with it if necessary after the question of liability has been determined. At that point further specificity may well be directed or encouraged in order to permit the respondents a fair opportunity to prepare their response. Whether or not a causal connection between the respondents' acts and any losses claimed can ultimately be established is, of course, the problem of the complainants. The issue of liability must first, however, be determined, and that will be done solely on the basis of improper conduct properly particularized before the Board. With respect to the allegation recently filed by Tecumseth involving Mr. Smails in December of 1980, the Board sees no overriding prejudice to the respondents, in view of the notice they now have, in permitting the complainants to adduce their evidence on that allegation. Whether that evidence is ill fact sufficient to implicate the respondents herein remains to be seen.
The matter will continue on the dates already set.
The decision of Board Member H. Kobryn will follow at a later date.