[1983] OLRB Rep. August 1353
0807-83-U; 0808-83-U The Mill Dining Lounge, Applicant, v. Hotels, Clubs, Restaurants and Taverns Employee Union, Local 261, F. Grilla, Secretary Treasurer and Business Agent, Eleanor S. Dunn, A. Charron, John Simpson, Lawrence Carter, Rad Daher, Claude Borda, Fernando Cagial, Stan Elliott, Carlo Vial, Pierre Hardy, Kathleen Kennedy, Tom Hughes, Roberto Rei, Oscar Borda, v. Respondents
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: James B. Chadwick, Murray Macy and Walter Langley for the applicant; David J. Jewitt, Frank Grella, Eleanor Dunn and Frank Charron for the respondents.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; August 18, 1983
1These applications for a consent to prosecute and a cease-and-desist direction arise out of the picketing by the respondents of the applicant's premises on June 13, 1983. No employees of the applicant failed to perform their scheduled shifts, and the applications were dismissed orally at the hearing on the basis that the evidence did not satisfy the Board that a "strike", within the meaning of the Labour Relations Act, had occurred.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
1I agree with the majority in their finding that the evidence with respect to the failure of Carlo Vial to work as requested was equivocal and that union leadership appear to have been scrupulous in ensuring that only employees who were not scheduled for work at the time participated in the picketing.
2I do however prefer the argument advanced by counsel for the applicant as to how the Board should interpret section 1(1)(o) wherein a "strike" is defined as including "a slowdown or other concerted activity on the part of employees designed to restrict or limit output" (my emphasis added).
3Clearly, the activity was designed to injure the employer by dissuading the public from patronizing the restaurant. That they were successful in doing so is confirmed by the uncontradicted evidence that business was down by approximately 15% from the norm which would have been anticipated that day.
4It should be acknowledged that this reduced level of business activity would also have had the effect of reducing gratuities, the principal source of income, for their co-workers who were on duty. While the Labour Relations Act does not make it an offence for employees to shoot themselves in the foot, inadvertently or otherwise, neither could it be argued, nor was it, that their suffering legitimizes the damage they incurred on their employer.
5Counsel for the respondent suggest, in view of the Board's past practice in its interpretation of the strike definition, that the applicant should seek relief in another forum. How this suggestion, if acted upon, would serve to improve a labour relations climate in which the parties already seem intent upon winning debating points rather than furthering harmonious relations is not merely unclear but unworthy.
6I would have granted the requested order if only to indicate to the parties that if they insist on treating collective bargaining as a class struggle race to nowhere, the probability is that they will succeed in getting nowhere.