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 463, 1982 CanLII 945

[1982] OLRB Rep. August 1109

0780-82-U Mechanical Contractors Association Ontario, Applicant, and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, All-Pro Contractors, Chris Burrows, Peter Christy, Regional Mechanical Services, and 375253 Ontario Limited, Respondents

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. Gibson and Stewart Cooke.

APPEARANCES: G. Grossman for the applicant, H. M Pollit and Chris Burrows for re­spondents Local 463 and Chris Burrow; Charles C. Mark, Q. C. and James W Spence for respondents Peter Chrysty, Regional Mechanical Services and 375253 Ontario Limited.

DECISION OF THE BOARD; August 5, 1982

I. The name of the respondent Peter Christie is amended to read 'Peter Christy".

2. This is an application for a direction under section 135 of the Labour Relations Act, alleging that the respondents have acted in violation of the prior order of the Board issued in File No. 0528-82-U, and as well, seeking relief for independent violations of sections 146(2) and 148(1) of the Act. The applicant, alternatively, seeks relief under section 89 of the Act.

3. The Board order referred to in these proceedings arose out of an application under section 135 of the Act filed on June 16, 1982, alleging that the respondent trade union and its Business Manager, Chris Burrows, were supplying men to one of their unionized contractors, "All-Pro", to perform construction work in the industrial, commercial and institutional sector of the construction industry at the Cadbury Schweppes plant in Whitby during the period of a province-wide strike. The application was heard on June 22, 1982, and on June 28th the Board, by telegram, issued the following decision and order:

RE SECTION 148(1) FILE 0528-82-U DECISION BETWEEN MECHANICAL CONTRACTORS ASSOCIATION ONTARIO AND UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 463, ALL-PRO CONTRACTORS AND CHRIS BURROWS STOP HAVING HEARD THE EVIDENCE AND CONSIDERED THE SUBMISSIONS OF THE PARTIES THE BOARD FINDS THAT:

1. MECHANICAL CONTRACTORS ASSOCIATION OF ONTARIO (MCAO) IS A DESIGNATED EMPLOYER BARGAINING AGENT AND IS ENGAGED IN NEGOTIATIONS FOR THE RENEWAL OF THE PROVINCE WIDE COLLECTIVE AGREEMENT COVERING PLUMBING AND RELATED WORK IN THE ICI SECTOR STOP

2. THE RESPONDENT UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA LOCAL 463 15 AN AFFILIATED BARGAINING AGENT AND IS BOUND BY THE TERMS OF THE DESIGNATION ISSUED TO THE EMPLOYEE BARGAINING AGENCY STOP

3. THE RESPONDENT ALL-PRO CONTRACTORS IS BOUND BY THE TERMS OF THE DESIGNATION LSSUEDTO MCAO STOP

4. A PROVINCE WIDE STRIKE COMMENCED ON MAY 25, 1982 STOP

5. SUBSEQUENT TO THE COMMENCEMENT OF THE STRIKE AND CONTINUING LOCAL 463 HAS SUPPLIED ALL-PRO CONTRACTORS WITH MEN TO PERFORM WORK AT THE CADBURY SCHWEPPES PLANT IN WHITBY WITHIN THE ICI SECTOR OF THE CONSTRUCTION INDUSTRY STOP

IN SO FAR AS THE 'MAINTENANCE AGREEMENT' ENTERED INTO BETWEEN LOCAL 463 AND ALL-PRO ON MAY 28, 1982 PURPORTS TO COVER THE WORK BEING DONE BY THE RESPONDENTS AT THE CADBURY PLANT IT IS IN VIOLATION OF SECTION 146(2) OF THE ACT STOP

THE ASSIGNMENT OF ITS MEMBERS TO PERFORM THIS ICI WORK AT THE CADBURY SCHWEPPES PLANT IS IN VIOLATION OF SECTION 148(1) OF THE ACT AND ACCORDINGLY LOCAL 463 AND ITS OFFICIALS AND AGENTS ARE DIRECTED TO CEASE AND DESIST FROM ASSIGNING LOCAL 463 MEMBERS TO PERFORM THIS WORK DURING THE CURRENCY OF THE PROVINCE WIDE STRIKE WHICH IS PRESENTLY IN PROGRESS STOP

4. The present application alleges that the respondent trade union has continued to supply men on the Cadbury Schweppes job to a "related employer", Regional Mechanical Services ("Regional") in violation of the Board's original order and the Act. Regional is a company formed by the previous job superintendent for All-Pro at Cadbury Schweppes, the respondent Peter Chrysty. All of the employees whom Mr. Christy hired to carry on the pipefitting work at Cadbury Schweppes were members of the respondent Local 463 who had, until the date of the Board's prior decision, been employed by All-Pro, under Mr. Christy's supervision, on that very job.

5. Cadbury Schweppes appeared at the hearing of this application seeking to inter­vene. It explained to the Board that the pipefitting work in question was part of an urgent project which, if prevented from being completed at this time, would necessitate a subsequent shutdown period involving substantial loss of production and employment. The Board ruled that the present situation was not sufficiently distinct from the situation before the Board and the Divisional Court in Napev Construction Limited, [1976] OLRB Rep. March 109; affirmed by the Divisional Court, Supreme Court of Ontario, May 24, 1977, to cause the Board to depart from the principles considered in that case. The Board ruled that Cadbury Schweppes had a "commercial interest" in the present application not sufficiently direct, in accordance with the Napev principles, to cause the Board to add Cadbury Schweppes as a party. In the exercise of its discretion, the Board noted as well, in accordance with the comments of the Supreme Court in Starr v. Town of Pus/inch, (1976), 1976 CanLII 870 (ON HCJ), 12 O.R. (2d) 40, that Cadbury Schweppes' interests were adequately represented by those of the respondents Peter Christy, All-Pro and Regional, who were contesting the present application. Counsel for Cadbury Schweppes thereafter indicated that he was now appearing on behalf of the respondent Regional, and proceeded to call his witnesses through Regional to refute the "related employer" allegation.

6. Counsel for the respondents Local 463 and Chris Burrows objected to the Board's jurisdiction to hear the application on the grounds that section 135 was inapplicable to a "failure-to-strike" situation such as the present. The Board indicated it would reserve on this issue and proceed to hear the evidence, particularly since no such objection had been raised on the hearing of the prior application in June, and no notice had been given that the matter would be raised at the hearing on the present occasion. Section 135(1) reads:

Where on the complaint of an interested person, trade union, council of trade unions or employers' organization the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counseled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, or that employees engaged in or threatened to engage in an unlawful strike, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

The Board does not consider it appropriate to deal with this issue in this case. The applicant claimed alternative relief under section 89 of the Act. Given the actions of Cadbury Schweppes and the respondents following receipt of the Board's initial order, and the impression that was created of a "related employer" situation, the Board does not find the applicant's second invocation of section 135 to be an abuse of process, and is prepared to consider the applicant's claim for relief in any event under section 89.

7. The respondents raised a second preliminary objection, on the ground that the applicant was seeking a "non-compliance" order (indeed, that in broad terms is the way the application was framed), and that the only jurisdiction to enforce compliance with a Board order lay in the Courts. Quite apart from the applicant's alternate argument of independent violations of the Act, however, the Board noted that the prior order, to the extent that the

present application depended upon it, named only All-Pro Contractors as a contractor against whom relief was granted. The present application sought relief against a new employer entity, Regional Mechanical Services, on the grounds that it was in law an "employer" related to All-Pro. The Board ruled that it did not seem inappropriate for the applicant to seek this "related ­employer" declaration from the Board prior to moving in the Courts to enforce further compliance if necessary, particularly in view of the wording of section 1(4) itself, which provides:

Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

(emphasis added)

This preliminary objection was accordingly dismissed as well by the Board.

8. The evidence leaves no doubt that Cadbury Schweppes was desperate to ensure that its shutdown work be completed on schedule, and had begun to make "contingency" arrangements even before the plumbers strike began. When the strike did begin on May 25th, Mr. Clifford, Cadbury Schweppes' Manager of Project Engineering, asked Peter Christy if there was any way of getting All-Pro's men back on the job. The signing of a "maintenance" agreement with Local 463 was discussed, and Cadbury Schweppes subsequently wrote to the union with that suggestion, indicating it would even be prepared to pay retroactively for the work performed during the strike. The union was agreeable, and a maintenance agreement was signed by Peter Christy on behalf of All-Pro. The applicant MCAO, however, was of the view that this was not "maintenance" work being performed but rather "construction" work, and filed the aforementioned section 135 application with the Board. The Board agreed with the position of the MCAO, and on June 28th issued the cease-and-desist order recited earlier in this decision.

9. Mr. Christy was on vacation during the week that the Board decision issued and, according to his evidence, had already arranged with All-Pro to quit the company. He stated that his relations had not been good with Mr. Rose, All-Pro's owner, for several months preceding that, and that everyone at All-Pro knew that the job at Cadbury was the last that Mr. Christy was going to do for All-Pro. On the subject of what Mr. Christy was going to do after he left All-Pro, Mr. Christy says that there was a good deal of joking on the job site that he was going to form a company called "No-Name Contractors" and go back into business for himself. On July 1st, Mr. Clifford telephoned Mr. Christy at home and advised him of the Board's decision. Mr. Christy said that he guessed that that meant he could stay on vacation. Mr. Clifford asked him if he had been serious about going into business for himself, and whether he would like to take over the work of All-Pro on that basis. Mr. Christy indicated that he was agreeable to that, and it was agreed that he could finish All-Pro's work on the same terms and conditions as had applied to All-Pro. Mr. Christy pointed out that the company would have to be non-union, and Mr. Clifford agreed with that.

10. Mr. Christy then went about setting up his own company. He registered as a proprietorship under the name "Regional Mechanical Services" and arranged for an account at the Workmen's Compensation Board. He also arranged for the transfer of his Master's license to his own company, and was advised that that would prevent All-Pro from carrying on any further mechanical contracting. Mr. Christy and his girlfriend are the only investors, officers and directors in Regional, and that company has no relationship or arrangement whatever with All-Pro Contractors. The company's head office is Little Britain, Ontario, and Mr. Christy's home, and the company has its own accountant and solicitor. Mr. Christy asked Bob Gay at Canada Manpower to send him candidates for employment to be interviewed at a hotel in Oshawa on July 7th. Mr. Christy stipulated the high qualifications which the work would require, and that the job would be non-union. Mr. Christy testified that Mr. Gay had trouble filling the order because of the high qualifications demanded, and of the 9 people sent by Mr. Gay. Mr. Christy hired 6. All 6 were Local 463 members who had been working under Mr. Christy at Cadbury up until the day of the Board's order. Mr. Christy's evidence indicates that subsequently two or three other All-Pro employees from the Cadbury site applied for employment, and were hired by Mr. Christy as well. Asked if he had had any discussion with either the trade union or these additional employees about applying for employment with him, Mr. Christy testified that he did not, and that it was unnecessary because the news of his job "spread like wildfire". One of the All-Pro employees hired by Mr. Christy to continue work at the Cadbury Schweppes plant was, incidentally, the son of Chris Burrows, Local 463's business manager. Mr. Burrows testified that his son has not lived with him for the past 6 or 7 years. In any event, the pipefitting work at Cadbury Schweppes continued through Peter Christy and Regional, and the other parts of All-Pro's contract at Cadbury Schweppes, covering electrical and millwrighting work at the plant, continued to be done by All-Pro's other union craftsmen. There was no evidence as to where the tools or equipment used by Regional came from. Regional does have other jobs pending now, all from Cadbury Schweppes.

11. The respondent Chris Burrows gave evidence as to his knowledge and activities of the above arrangements. His home address is also Little Britain, Ontario, the same as Mr. Christy, but he testified he rarely sees Mr. Christy on a social basis, and that he at no time discussed with Mr. Christy the formation or staffing of his new company. Notwithstanding as well the inclusion of one of his sons in the work crew, the presence of other union trades of All-Pro on the job, and the fact that the hiring efforts of Mr. Christy "spread like wildfire" to other members of Local 463, Mr. Burrows denies that he or any officer of Local 463 had any knowledge of his members working for Mr. Christy at Cadbury Schweppes until Friday, July 16th, when they read about it in the newspapers. He testified that he was himself tied up in province-wide negotiations in Toronto, but instructed the "acting" business agent Harry Duggan to investigate the situation on Monday morning. Mr. Duggan did so and reported to Mr. Burrows that he had identified three members of the Local working at Cadbury Schweppes before he was escorted off the job. Mr. Burrows instructed Mr. Duggan to write to the three members advising them that they would be charged under the union's constitution if they persisted in working for an employer who was not in contractual relations with Local 463 or any of its affiliated Locals. Mr. Duggan did so, and, not receiving any response from the men by July 21st, filed the charges. The Board was advised that the charges would be put before the membership at the next general meeting, which would take place after the strike, and that the charges would then normally be referred to the Executive Board for trial. The Board was also advised that the penalty in the event of a "conviction" was in the discretion of the Executive Board. Mr. Burrows was asked by counsel for the applicant why he did not instruct the Cadhury Schweppes job to be picketed when he heard that a "non-union" contractor was performing the work, and Mr. Burrows responded that it was not Local 463's policy to picket job sites. Upon further examination, Mr. Burrows acknowledged that he had recently set up an unlawful picket line (unconnected with the present negotiations) at a hospital job site when he learned that a union contractor had spun the pipefitting work off to a related non-union company.

12. On the basis of the above evidence, the "related employer" allegation can be dealt with succinctly. The applicant conceded that had Cad bury Schweppes replaced All-Pro with a truly independent non-union contractor, there would be no basis to complain. But there clearly is not the "essential unity and identity" in ownership and control of the two entities in this case to come within the definition of "related employer" under section 1(4) of the Act. See, e.g., Brant Erecting and Hoisting, [1980] OLRB Rep. July 945. There are no common directors, officers or shareholders between the two organizations, nor is there evidence of any form of commercial arrangement existing between the two. The situation, on this aspect of the case is closer to the kind of "spin-off' occurrence which the Board found to be neither a 1(4) relationship nor a "sale of a business" in Rivard Mechanical, [1981] OLRB Rep. May 550.

13. The question whether the respondents (excluding All-Pro) are violating the Act's province-wide bargaining provisions themselves is far more complex. No case has been made out to establish that Local 463 or any of its affiliated Locals have bargaining rights for Regional, so that that company does not itself fall within the class of companies brought into province-wide bargaining by the employer bargaining agency designations. It is a case, if the applicant's allegations are made out, of a building trades union supplying its members to work for a non-union company, no doubt a situation never expressly contemplated by anyone at the time this legislation was pieced together. While the activities and intentions of the owner, Cadbury Schweppes, are readily transparent, it does not follow from that alone that the method adopted to complete the work which Cadbury Schweppes urgently required to be done is unlawful, bearing in mind in particular that Cadbury Schweppes is itself an innocent third party to the strike which has created the problem.

14. In seeking to establish that the present arrangement is unlawful, the applicant again relies on sections 146(2) and 148(1) of the Act. Section 148(1) reads:

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.

It cannot be that that section requires Local 463 to call a strike of its members against Regional Mechanical Services in accordance with the province-wide strike, because Local 463 has no bargaining right for employees of Regional, and the conciliation requirements of the Act have not been met. It would, in other words, be an unlawful strike with respect to Regional Mechanical Services and its employees, by virtue of the other provisions of the Labour Relations Act.

15. But this anomaly does not arise if section 146(2), the broader of the two sections, operates to prevent Local 463 from supplying its striking members to Regional in the first place. Section 146 provides:

146.-(l) An employee bargaining agency and an employer bargaining agency shall make only 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.

(emphasis added)

Can a bargaining agent be said to "represent employees" at a time when the individuals in question are working for a non-union contractor, i.e., a contractor for whom the trade union holds no bargaining rights?

16. As can be seen, the concern of the Legislature in section 146(1) is to protect the principle of a single province-wide collective agreement. But if that was the Legislature's only concern, it could have stopped there; subsection (I) is plain enough. Instead, the Legislature went on to proscribe in subsection (2) a host of activities which those with a knowledge of the process recognized would be inimical, if not fatal, to the intended operation and product of province-wide bargaining. As the Board commented in Sikora Mechanical Ltd., et al. [1982] OLRB Rep. June 941, at paragraph 18:

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 broader mandate in dealing with all manner of activity that impairs the integrity of province-wide bargaining. It is also apparent that the legislators, in dealing with the uniquely complex and sensitive process of province-wide bargaining, recognized that it could never hope to anticipate the full range of creativity with which the labour relations community would respond to the legislation, and thus employed language which is striking by its breadth. It is left to the knowledge and experience of the Ontario Labour Relations Board to give that language a meaning which will be true to the goals of the legislators. As the Board put it, again in Sikora Mechanical Ltd., supra, at paragraph 20:

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.

17. It is well established that the supply of Union members to continue to work in the face of a province-wide strike can fall within the range of "other arrangements" prohibited by section 146(2). See Jen Mar Construction Limited, [1978] OLRB Rep. July 647; Sikora Mechanical, supra. Nor can there be any doubt that the order issued by the Board in connection with the present job in Board File No. 0528-82-U was precisely the kind of order contemplated by the section. This being the case, does it make sense that the impact of that order could be avoided for one side only (i.e., the affiliated bargaining agent and its members) in every case simply by creating a new "non-union" entity to employ the very members of the striking union on the very work which supposedly is being "struck"? Or, as Mr. Grossman argues, does it make sense that the affiliated bargaining agent and its members could avoid the impact of the order simply by offering their services directly to the owner-customer? To extend Mr. Grossman's argument, if the response of the parties is acceptable in this case, what is to prevent a re-enactment of it on virtually every IC! job in the province, at least where there is a customer for whom an affiliated bargaining agent does not hold bargaining rights? We know that the legislation prohibits the unionized contractor from continuing to employ union members during a strike. Is the Union then free, after ushering the contractor off the job by the calling of its strike, to offer to provide its same members to the customer for the purpose of continuing the struck work? Can the Legislature have intended to distort to such an extent the relative strengths of the parties in a legislated bargaining process that, needless to say, must have been intended to be workable?

18. This province-wide bargaining legislation, for the reasons given, may well stand on its own footing. Yet it is interesting to note the recognition which has been given in other contexts to the effect of hiring-hall and closed-shop provisions in the collective bargaining arrangements of industries like this one on ordinary notions of master-and-servant relationships; and further, the basis on which a trade union in that context can be said to represent employees'' who are at a given point in time not employed by a specific employer at all. In the International Longshoremen's Association case, (1978), 1978 CanLII 158 (SCC), 89 D.L.R. (3d) 289, the Supreme Court of Canada had to consider the question whether members of the Longshoremen's Union could be said to be engaging in a strike at a time when they had not yet been referred to work. The Court commented, commencing at page 293:

When these collective agreements were signed by the officers of the Association and the officers of the Locals, all the parties to the agreements recognized the peculiar or particular characteristics of the stevedoring business in the Port of Saint John; the local for its part undertook to supply the required labour, and the Association, on behalf of its member employers, undertook to assign stevedoring work only to members of the Locals. The agreements in their entirety are predicated upon this relationship and on the fact that labour would be required only when work was available to be performed and that hence the remuneration would be paid to members of the Locals only when services are requisitioned by the Association members pursuant to the terms of the collective agreements. For the purposes of collective bargaining and labour relationships under the resulting collective agreements, members of the Association and members of the Locals were respectively employers and employees from the onset of the agreements, whatever their rights and obligations may or may not include under the common law of master and servant.

and at page 294:

The employees, as the term is used in the collective agreements herein, are of course the members of the local on whose behalf the local has undertaken to supply labour to the employer organization and its component members. It cannot be said that the agreements were designed to operate and in fact operated only after the members of the Locals reported to work. The agreements contemplate a relationship under which both parties have obligations commencing the effective date of the agreement and under which the Association represents all its members and the Locals represent all their members.

(emphasis added)

Similarly, the Ontario Court of Appeal, in deciding in Blouin Drywall Contractors Ltd. (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199; 8 O.R. (2d) 103, that a trade union could claim monetary damages on behalf of its members for breach of the hiring-hall provisions of the collective agreement even though none of its members were technically "employees" at the time, had this to say, at pages 112 and 113:

Collective agreements in this industry have developed to include benefits to non-employees who are union members. In this industry, there is no continuing employment and so collective agreements have developed to ensure a source of labour to the contractor, to provide for preference in the employment of trade union members and, while establishing the terms and conditions of such employment, to provide other benefits which may become due or payable at a time when the union member is not employed.

In my opinion, the grievance for the loss of the benefit in terms of the loss of wages, was maintainable either as a grievance by the non-employee members of the union or by the union on their behalf

(emphasis added)

19. In the same way, we find that a trade union must be said to continue to "represent" its members as "employees" during the course of a strike, at least with respect to the very work to which its members would have been assigned had the strike not intervened. As a matter of common sense, we would have been inclined to this view even without the assistance of section 1(2) of the Act, which provides:

For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for this employer as the result of a lock-out or strike or by reason only of his being dismissed by his employer contrary to this Act or to a collective agreement.

The same conclusion is necessary to give any effect at all to the words "all the employees represented by all affiliated bargaining agents~~ in, e.g., section 148(1), once a strike is in progress. What this means under section 146(2), however, is that an arrangement with any person or employer, whereby employee-members perform, or are permitted by their bargaining agent to perform, work which, but for the strike, would have been performed by the employer who has been struck, is unlawful. The effect of section 146(2) on a striking Union and its members, in other words, is clear and straightforward. If the Union and its members opt for strike action, the members do not thereafter continue to perform the struck work, even for a non-union employer.

20. We use the term "non-union" advisedly, because this case points up the potential anomaly in the use of that designation. Mr. Clifford gave evidence as to the problems which Cadbury Schweppes anticipated from both its unionized plant personnel and the remaining building-trades members on the construction project if the company tried to complete the pipe fitting work with a non-union contractor. Yet when Mr. Christy and the former All-Pro employees were hired to do the job, there was not a hint of trouble. Why? Mr. Burrows admitted having thrown up a picket-line on a job during the course of a collective agreement (when it was unlawful) upon discovering that union work had been transferred to a non-union employer. Yet he apparently never considered doing so in this case, when it would have been lawful. Why? The answer, to the Board, lies in the perception of all of the parties as to whether they considered this job was being carried out "union" or "non-union". In the same vein, one might ponder what the future will be for Regional, and its relationship with the Union, Cadbury, and its present employees, once this strike is over.

21. This brings us to the question whether the respondents Burrows and Local 463 can be said to have entered into an "arrangement" with Regional Mechanical Services, within the meaning of section 146(2). We are satisfied on the evidence that neither of those respondents took an active role in the initial supply of men to Regional. That does not, however, dispose of the matter. As the Sikora Mechanical case, supra, made clear, the "arrangement" may consist in knowingly permitting the employment of union members to continue without taking reasonable steps available to the bargaining agent to control it. The Board observed in that case, at paragraph 20, referring specifically to section 148(1) of the Act:

An affiliated bargaining agent is obligated to call or authorize the strike in respect of all employees it represents in the ICI sector and this obligation must be held to be a continuing obligation. . . 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).

These words must apply with equal force to the related prohibition in section 146(2).

22. The kind of steps taken by the respondents Burrows and Local 463 in this case might well have been adequate to meet the duty, provided they were taken bonafide and under circumstances in which their members would be likely to take them seriously. Having regard to all of the circumstances in this case, however, including the denial of these respondents of any knowledge of the activities of their members prior to the newspaper accounts (a denial which we cannot, in this case, accept), we do not find the steps taken by the respondents Burrows and Local 463 to be bona fide, or likely to be seriously taken that way by their members.

23. On the basis of the foregoing, the Board finds that an "arrangement" presently exists amongst respondent Local 463 and its Business Manager, Chris Burrows, the respondent employer Peter Christy (carrying on business through the respondents Regional Mechanical Services and 375253 Ontario Limited), and his employees who are members of Local 463 and employed at All-Pro's job site at Cadbury Schweppes at the time that the strike began, in violation of section 146(2) of the Act.

24. The Board accordingly directs and orders:

(a) that Regional Mechanical Services, 375253 Ontario Limited and Peter Christy and any other employer having notice or knowledge of this Order forthwith cease and desist from employing any person represented by Local 463 or any other trade union affiliated with the employee bargaining agency with which Local 463 is affiliated on construction projects in the ICI sector of the construction industry at which employers for whose employees Local 463 holds bargaining rights were working at the commencement of the strike until the strike is terminated;

(b) that Regional Mechanical Services, 375253 Ontario Limited and Peter Christy post a copy of the attached Notice marked Appendix at the construction projects referred to in paragraph (a) of this Order at which Regional Mechanical Services or 375253 Ontario Limited were working on July 21, 1982 in a conspicuous place after a copy of it has been signed by Local 463 and delivered to Regional Mechanical Services, 375253 Ontario Limited or Peter Christy, and keep the Notice posted until the strike is terminated;

(c) that Chris Burrows and Local 463 forthwith take reasonable steps to inform and direct members of Local 463 that they are not permitted to perform work on construction projects in the ICI sector of the construction industry at which employers for whose employees Local 463 holds bargaining rights were working at the commencement of the strike until the strike is terminated;

and in accordance with that direction,

(d) that Local 463 forthwith sign the Notice marked Appendix and, at its own expense, forthwith deliver one copy to Regional Mechanical Services; 375253 Ontario Limited or Peter Christy and mail a copy to each of its members.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

TO MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 451

WE NAVE ISSUED This NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT LOCAL 463 AND REGIONAL MECHANICAL SERVICES, 37525 ONTARIO LIMITED AND PETER CHRISTY VIOLATED THE LABOUR RELATIONS ACT BY ENTERING INTO AN ARRANGEMENT AFFECTING OUR MEMBERS, AND HAS ORDERED US TO INFORM UR MEMBERS OF THEIR LEGAL RESPONSIBILITIES UNDER THE ACT.

THE LABOUR RELATIONS ACT, IN ESTABLISHING PROVINCE-WIDE BARGAINING FOR EMPLOYERS AND TRADE UNIONS IN THE INDUSTRIAL, COMMERCIAL AND INSTITUTIONAL SECTOR OF THE CONSTRUCTION INDUSTRY, PLACES CERTAIN OBLIGATIONS AND RESTRICTIONS UPON MPLOYERS, TRADE UNIONS AND THEIR MEMBERS IN THE EVENT A LEGAL PROVINCE—WIDE STRIKE IS CALLED AGAINST EMPLOYERS IN THAT SECTOR OF THE INDUSTRY.

WE THEREFORE ADVISE YOU THAT YOU CANNOT PERFORM STRUCK WORK FOR ANY EMPLOYER, UNION OR MON—UNION, WHILE OUR STRIKE CONTINUES.

UNITED ASSOCIATION OF JOURNEYMEN AND

APPRENTICES OF THE PLUMBING AND PIPE

FITTING INDUSTRY OF THE UNITED STATES

AND CANADA, LOCAL 463

PER:

BUSINESS MANAGER

This is an official notice of the Board and must not be removed or defaced.

DATED this 5th day of August 1982