[1982] OLRB Rep. July 1105
0703-82-U Wharton Industrial Developments Ltd., Applicant, v. Wally Reinsons, Ron Smith et al.. Respondents.
BEFORE: R. A. Furness, Chairman.
APPEARANCES: Brain P. Smeenk, R. Wharton and D. Wharton for the applicant; L. C. Arnold, David Johnson and Sean O'Ryan for the respondents.
DECISION OF THE BOARD; July 27, 1982
The applicant has requested relief under section 135 of the Act. In a decision dated July 15, 1982, the Board dismissed this application and stated that written reasons would be given.
The applicant is the owner and general contractor of a project known as the Renaissance Hotel which is located at the intersection of Kennedy Road and Highway 401 in the Borough of Scarborough in Metropolitan Toronto. This project involves the refinishing and expansion of an existing hotel. On this project the applicant has used both unionized and non-unionized sub-contractors.
The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (the "UA") and its local trade unions have been engaged in a lawful strike with respect to the industrial, commercial and institutional sector of the construction industry throughout Ontario since May 25, 1982. This strike has affected the completion of plumbing work performed by Sikora Mechanical ("Sikora") with members of Local 46 of the UA. Local 46 of the UA satisfied itself that during the lawful strike the work which was to have been performed by its members as employees of Sikora has been performed non-unionized employers using non-unionized employees. Local 46 of the UA appealed to the Toronto and Central Ontario Building and Construction Trades Council (the "Council") for the sanctioning of a picket line which was to be maintained by members of Local 46 of the UA. After investigating the facts upon which Local 46 of the UA relied, the Council sanctioned the picket line.
The picket line commenced on July 7, 1982, and remained in effect until at least July 12, 1982. This picket line was generally respected by the employees on the project. Most of the employees respected the picket line from its inception on July 7. However, other employees completed work as a matter of safety or with regard to potential damage which the applicant might suffer before respecting the picket line.
At various stages of the hearing, the applicant withdrew its request for relief against certain named respondents. Having regard to the stages at which such requests were made, the Board dismisses this application in so far as it relates to the following persons:
J. Jugloff Walter Cadena Wally Reinsons T. Jugloff Jose Paez Ron Smith and Donald Linthwaite Donato Stante Matt Davidson. Jaime Garxon Gino Stante
The remaining respondents are carpenters; labourers; sheet metal workers; marble, tile and terrazzo workers; electricians, painters and bricklayers. These respondents are covered by collective agreements which were in effect on July 7, 1982, and at all material times thereafter. In these circumstances these respondents would not be in a position to engage in a lawful strike with respect to the project. There are two issues to be considered by the Board. Firstly, did the respondents engage in an unlawful strike? Secondly, if the respondents engaged in an unlawful strike; should the Board, in the exercise of its discretion, grant the remedy requested by the applicant?
In section 1(l)(o) of the Act, "strike" is defined as follows:
l(l)(o)
"strike" includes a cessation of work, refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.
It is necessary for the Board to determine whether the respondents refused to perform work in accordance with a common understanding. It was strenuously argued on behalf of the respondents that each employee who refused to cross the picket line did so as a personal decision and as a matter of union solidarity. It was argued that in these circumstances there could be no "common understanding". This issue was canvassed by the Supreme Court of Canada in International Longshoremen's Association, Local 273 et al v. Maritime Employers' Association et al. 78 CLLC ¶ 14,171, where Estey, J. indicated that the cessation of work with a common understanding might be considered as stemming from the universally understood doctrine of union solidarity, namely, opposition to choosing a legally constituted picket line. The evidence before the Board established a realistic and accurate expectation that the picket line sanctioned by the Council would be respected by the respondents. The Board is satisfied that the "in accordance with a common understanding" has been established.
The question of whether there was a cessation of work, a refusal to work or to continue to work requires consideration of the circumstances surrounding the maintenance of the picket line. The representatives of the sub-contractors who employed the respondents learned of the imminence or presence of the picket line from representatives of some of the trade unions, from supervisors on the site and from some of the respondents. The subcontractors immediately adopted measures to re-assign their workforces. Whenever possible employees were directed to other projects, permitted to take vacations, given work at a subcontractor's residence or, rarely, sent home for a few days. The Board finds that, in anticipation of the picket line or upon being informed of its existence, the sub-contractors did not schedule work so as to work on the project. It appeared to the Board that a great deal of empathy existed in the sub-contractors towards the situation of Sikora and the members of Local 46 of the UA. The Board finds that since the sub-contractors decided not to schedule work during the maintenance of the picket line there was no cessation of work, refusal to work or to continue to work by the respondents. Accordingly, the respondents have not engaged in a strike within the meaning of section l(l)(o) of the Act.
In these circumstances, it is not necessary for the Board to arrive at any conclusion with respect to the issue of whether the Board should exercise its discretion and grant the remedy requested by the applicant. It was argued on behalf of the respondents that the Board ought not to issue a cease and desist order against the respondents and any other employees to whom notice or knowledge of the Board's direction shall come from engaging in an unlawful strike and forthwith return to work as scheduled at the project. It was the position of counsel for the respondents that such an order would mean the end of a