The Ontario Erectors Association v. International Association of Bridge Structural and Ornamental Ironworkers Local 786, 1983 CanLII 849

[1983) OLRB Rep. November 1801

0018-82-M The Ontario Erectors Association, Ralph M. Moore Industrial Installations Limited and Dominion Bridge Company Limited, Applicants, v. International Association of Bridge Structural and Ornamental Ironworkers Local 786, International Association of Bridge, Structural and Ornamental Ironworkers, the Ironworkers District Council of Ontario, those persons listed on Schedule A and V. Boulard, Respondents.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members M. Eayrs and C. A. Ballentine.

DECISION OF THE BOARD; November 25, 1983

[1]. The respondent International Association of Bridge, Structural and Ornamental Iron-workers Local 786 ("Local 786"), by letter from its counsel, has asked the Board to reconsider its decision in this matter which issued April 21, 1983. In that decision, (reported at [1983] OLRB Rep. Apr. S03) the Board found that Local 786, as a result of an unlawful strike by the ironworkers employed by Moore Industrial Installations Limited ("Moore") and Dominion Bridge Company Limited ("Dominion") and represented by Local 786, had violated Article 26 - No Strike or Lockout of the ironworkers provincial agreement which, at the time, was binding on Local 786, Moore and Dominion. The Board also assessed damages against Local 786 as a consequence of its violation of the provincial agreement ("the Agreement") totalling $18,795.00 payable to Moore ($181.00) and to Dominion ($18,614.00).

[2]. There are three elements to Local 786's request for reconsideration. First, with respect to its liability for the unlawful strike, counsel for Local 786 contends that the Board has departed from the established factual standards applicable to findings of liability for trade unions arising out of unlawful strikes and the Board has found liability in Local 786 when the Board's findings of fact "... did not find blame in relation to [Local 786].". Second, it is contended that the Board's application of the facts at issue to the question of Local 786's liability for the strike "... is inconsistent with the concepts of agency as enunciated by the Supreme Court of Canada.". Third, it is contended that the Board failed to consider uncontradicted evidence relating to the damages claimed by Moore and Dominion when it was as­sessing damages against Local 786.

SUBMISSIONS

[3]. The letter from counsel for Local 786 was sent to the• other parties for comment and reads as follows:

Pursuant to the provisions of the Ontario Labour Relations Act, we request, that the Board reconsider its decision as a result of the respondent' s claim that the Board failed to consider uncontradicted evidence relating to the question of damages, and conclusions of fact and law which were presented to the Board and have not been dealt with.

With respect, we believe the finding of the Board to have major repercussions for not only the respondent, but all craft trade unions in the Province of Ontario as it relates to the standard of responsibility imposed upon both International Unions, Local Unions, and the individual executive members thereof, when dealing with the responsibilities which they must carry out in the face of an illegal strike.

We believe that the Board in its decision of April 21st, 1983 has departed from the previous factual standard that has been applied against respondent unions, and that this was done in the face of a finding of fact by the Board which did not find blame in relation to the respondent.

As regards the findings of fact made by the Board, there is no doubt that a walk-out was instigated and brought about by the respondent Boulard. The Board made the finding at paragraph 32, however, that Lajeunesse and Verdecchia acted promptly to limit that liability by taking steps over the weekend to ensure an orderly return to work on Monday. The Board later stated in the same paragraph, "While Local 786 officials acted promptly, positively and decisively in that respect, the Board has some remaining doubt as to how they discharged their responsibility under Article 26 to prevent the unlawful strike of their members."

Although making the latter comment, the Board fails to indicate what would have been reasonably expected of the respondent Local and its representatives, given the fact that Verdecchia had already attended at the site and indicated the manner in which the work assignment was to be performed. Verdecchia stated, and the Board has accepted, that if he had suspected that there were to be an unfavourable reaction of his members, he would have stayed in the area to deal with any problems. The Board made a finding in paragraph 33 that one of the stewards, Powers, failed to alert Verdecchia or Lajeunesse to the possibility of the dissatisfaction of the other members spreading. The respondent points out that there was no evidence upon which Powers could have made any assessment that such dissatisfaction was spreading, and no evidence was led in that regard. Further, there was no reason whatsoever for Powers to phone Verdecchia or Lajeunesse on Thursday, as he was aware that Verdecchia was on the building site on that very afternoon. Therefore, there was no logical reason as to why he should contact Verdecchia.

Such a conclusion as was drawn against the steward Powers was also cited in paragraph 16 of the Board's decision and yet again, there is no logical reason why such a conclusion should be drawn as against such steward, as Verdecchia was on site during the Thursday afternoon.

The Board on the other hand admits in paragraph 34 that "It has the advantage of the accuracy of hindsight," and as a result, in the respondent's submission, lays blame where no blame could be proven. The Board goes on to state in paragraph 34 that "The failure of both Verdecchia and Powers to recognize the circumstances with which they are confronted on Thursday as the forerunner of Friday's strike seems inconsistent with their experience as union officials in their trade."

By taking the approach that it has, it is respectfully submitted that the Board has made a finding unsupported by any of the facts and imposing a degree of responsibility which is wholly unrealistic given the practical realities of the every day functioning of a construction site. The Board's decision may seem attractive in the academic sense or in the sense of attempting to impose a new legislative responsibility on trade unions. However, such an approach to the facts in issue have, with respect, deviated from the established practice of both the Board, and arbitrators, and is inconsistent with the concepts of agency as enunciated by the Supreme Court of Canada.

There was absolutely no evidence to suggest that on the Thursday evening, Verdecchia could have known that there was a reasonable chance that there would be a full scale walkout on the Friday morning. The most that can be said is that Boulard reacted to Verdecchia's instructions in such a way as to let Verdecchia know that he was not happy with the decision concerning the work assignment. That type of reaction is one that union officers see every day when they visit their members on any construction site and it does not necessarily mean that such a reaction is a precursor to an illegal strike. To make such an assumption is to impose a totally unrealistic responsibility, and skill as a "Cassandra", in order to meet the standard imposed by the Board.

At the commencement of the hearing, the Board accepted that the International could be removed as a named respondent. Given the decision of the Board in paragraph 34, there is no logical reason why a finding against Local 786 should not also be applicable to the International as there was as much responsibility in legal terms according to the Board's finding on the International as there is upon the Local. With respect, the respondents submit that the Board has failed to accept that there is no absolute liability upon a Local union for an illegal strike. (See Re Maritime Employers' Association (1975) 1975 CanLII 2137 (NS LA), 10 L.A.C. (2d) 225.)

It has been submitted that the essence of the cases that have imposed an obligation upon a Local, or International Union, for the acts of its officers, or stewards rests on the premise that the named individual is acting as an agent of the Local, or International Union, and is seen to act in such a position and have the authority to call the illegal strike. In the normal situation which has proceeded before the Board, that scenario has unfolded and therefore there is an added obligation on the Local Union to rectify the matter as quickly as possible. One response in many situations is for the union to immediately suspend the job steward apart from taking all the other necessary actions to establish a return to work.

However, the essence of the agency concept is that the person who is dealing with such agent, and in this case the steward, Boulard, must believe that that person has the unfettered right to cause the problems that were created. In other words, that the Board could make a finding of fact that both Dominion Bridge and Ralph Moore could have assumed for legal and factual purposes that Boulard had ostensible or apparent authority. Given the findings of fact made by the Board, that conclusion both factually and legally is impossible to make in the instant case.

It is submitted that the evidence was uncontradicted, that Verdecchia visited the responsible officials of Ralph Moore on the Thursday and indicated the manner in which the job assignment should be carried out, in effect agreeing with the officials of Ralph Moore. Further, Verdecchia's decision was made known to the employee members and such a decision clearly overruled the steward Boulard. The evidence, therefore, confirms that Verdecchia had visited the site on Thursday and thus the only logical and legal conclusion that can be reached is that Verdecchia, being business manager of the Local, had the apparent and actual authority to bind the Local.

In this regard, the respondent cited to the Board the Decision of the Supreme Court of Canada in Canadian Laboratories Supplies Limited v. Englehart Industries of Canada Limited 1979 CanLII 44 (SCC), 97 D.L.R. (3d) 1. The respondent cited a large number of other decisions which have approached the problem of liability in terms dissimilar to the Board's approach in the instant case, i.e. without taking the approach that "absolute liability" is the test.

Given the decision of the Supreme Court of Canada, including the Chief Justice, in the above-cited case and the Chief Justice's decision in the Polymer award cited by the Board at paragraph 26, it is even more puzzling to understand how the Board could conclude from the facts so found that the Local did not act reasonably in the circumstances and was tainted with activity carried out by an individual who clearly did not have any actual or apparent authority given the fact that Verdecchia had dealt with the matter directly. It is submitted that in the context of a 5. 124, which this complaint was, the Board has to find factual and legal responsibility in terms of a breach of the collective agreement. A breach of a collective agreement can only be brought about by an agent acting on behalf of the Local and since Mr. Boulard was no longer the apparent or actual agent acting on behalf of Local 786, it is legally impossible to come to the conclusion that, therefore, his actions bind the Local.

For the above reasons, it is requested that the Board reconsider its decision and the serious impact such decision could have upon the Labour Relations of the Construction Industry.

The Board further goes on to make a finding as to the damages payable by the Local to Ralph Moore and Dominion Bridge. The Board accepts, without more, the claim for overtime submitted by the Complainant, Dominion Bridge, and being in the amount of $13,120. It is respectfully submitted that such a conclusion is totally contrary to the evidence submitted on the face of the record. Dominion Bridge submitted to the Board, exhibit 4, dated September 14, 1982 and accompanying documents which summarized the amount of total premium time supposedly worked as a result of the shutdown. However, upon cross-examination on such documentation, it became apparent that all of the work which was performed at premium time was performed as a result of other causes during the weeks following the shutdown. For instance, on March 16th, there was a delay in production as a result of snow at 3:30 and there being no clips on the columns to receive the grit 2281. On March 17th work was retarded during the day as all of the holes on various pieces of steel had to be reworked. On March 18th, there were four hours lost time as a result of having to rework the holes again. On March 19th, the erection crew found missing pieces and rigging could not commence because of the late shipment and poorly identified bundles. Without going through the remainder of such documents, almost each and every document for each day of work, where overtime was claimed, showed that some problem which occurred during the day extended the day, thus there was no evidence that could be proven by the Complainant to the effect that the overtime worked on that day was only and purely due to the illegal walkout that occurred on the Friday. In fact, the evidence was that the job was already two months, or more, behind schedule and a new completion date for certain work had been provided by the owner. The evidence further showed that due to the increased efficiency of the respondent employees, the work was completed ahead of the new completion date.

It is respectfully submitted, therefore, that upon a proper review of the evidence as filed, there was no established proof that the company could be said to have suffered a $13,000 loss as a result of the walkout. In addition, the Board has failed to follow the principle as enunciated in Canadian Kenworth Company Ltd. and Canadian Association of Industrial Mechanical & Allied Workers Local 14, a decision of Professor J. Weiler, dated February 22, 1980, filed with the Board. It is apparent from that case, as was admitted by one of the witnesses, that the company would not know whether or not they would make a loss or how much of a loss they would make until the job was completed and the year end finalized. It is respectfully submitted that the Board should not have made an award against the Union, for it did not have any evidence before it of what the company's position was on the contract at the end of the job, nor what the company's position was at the end of its financial year. Dominion Bridge being a part of the Amca company, one questions whether or not a one day walkout created the type of loss as found by the Board and claimed by the Complainant.

For all of the above reasons, the respondent therefore, respectfully re­quests that the Board reconsider its decision.

[4]. The reply from the solicitors for the International Association of Bridge, Structural and Ornamental Ironworkers ("the International") noted that the complaint had been dismissed against the International and its Ironworkers District Council of Ontario ("the Council") and commented in part as follows:

In the circumstances, since the International Association is neither a party to nor affected by these proceedings, we do not intend to comment upon the request for the reconsideration of the board's decision. We note, of course, the reference to our client on p. 3 of the request for reconsideration but do not treat the submission therein contained, made at this date and in that context, as in any way imputing liability on our client in this matter.

Finally we no longer act for the Ironworkers District Council of Ontario and note that a copy of the subject correspondence has been forwarded to them.

[5]. The Board received several letters from the respondent, V. Boulard. In a large measure, they dealt with an internal dispute between him and Local 786 in which he was seeking the intervention of the International. He does express in his letters an interest in introducing additional evidence, but it appears to the Board that all of this evidence is evidence which was available to him and to his counsel at the time of the hearing.

[6]. Counsel for the applicants responded to the letter requesting reconsideration of the Board's decision in the following terms:

It would appear to the writer that the request for reconsideration does not meet any of the criteria that have been established by the Board in its earlier decisions as governing those cases in which reconsideration should be undertaken.

It is not suggested anywhere in Mr. Green's letter that there is any new evidence which could not previously have been called nor indeed any evidence that was not called at all, nor is it suggested that the parties have not had full and complete opportunity to present all the relevant facts and to argue on all of the issues before the Board.

Under the circumstances, therefore, there does not appear to be any basis upon which the Board should exercise its discretion to reconsider the decision.

It would appear to the writer that what is being suggested is that since the decision is an important one, it should be further reviewed by the Board, however, the writer is certain that the Board has given the matter due consideration in the first instance.

While in essence it is our position that the decision of the Board and the findings of fact made by the Board and inferences drawn by the Board are all fully supported by the evidence and totally warranted by the circumstances of this case, there are a very few points contained in Mr. Green's letter upon which we would like to comment. These are as follows:

1. At page 3 of his letter he suggests in paragraph 3 that there is no reason why the finding with respect to the Local should not be equally applied against the International. Frankly, on the evidence in this particular case, I can think of no more clear set of circumstances where such a position could not be taken.

The Board will recall the evidence of the International representative and the telegram delivered by the International immediately upon its learning of there being any problem whatsoever. The Applicant has not suggested and certainly does not suggest that it would be a warranted or indeed logical or proper extension of the argument to carry it forward to the International.

2. Mr. Green has argued at length that since the Local representative had appeared on the scene and taken a position with respect to the dispute on the work assignment, that this somehow removed Mr. Boulard from his position as an agent of the Local for all purposes and he has stated at page 4 that, "since Boulard was no longer the apparent or actual agent acting on behalf of Local 786, it is impossible to conclude that his actions bind the Local." This is a rather frightening concept and one which could be used to insulate a trade union from any responsibility from the acts of any of its representatives or executive merely by saying that they could not be perceived as acting with the authority of the Local.

In this particular case, it of course would involve making the argument that merely because the business representative had taken a position different than that of Mr. Boulard with respect to the work assignment, this would be taken as communicating not only to the Company but to all others on the job site the fact that Mr. Boulard was no longer an agent of the Local for any purpose and was, therefore, not to be seen as occupying a position which was in any way representative of the Local position when he took all of the actions and made all of the statements that he did on the morning in question causing a large number of employees to leave the job. Surely, it takes a great deal more than this to divorce the principle from the acts of the agent.

3. With respect to the calculation of damages, once again the points raised are all those which were raised on the basis of the evidence before the Board and the argument addressed to the Board and we simply comment that the Board's award, while in fact probably falling short of reimbursing the Applicants for the whole of their monetary loss, is an award that is fully justified by both the facts and the evidence.

4. We cannot help but also comment that the request for reconsideration has not been made for a considerable period of time following the release of the decision and has really only come at a time when the Applicants have been pressing for compliance with the award.

In summary, therefore, we would request that the Board reject the application for reconsideration without delay.

LIABILITY

[7]. The several references in the letter from counsel for Local 786 notwithstanding, the Board, in finding that Local 786 was liable for the unlawful strike, has not departed from the arbitral principle that a trade union has no automatic or absolute liability, a principle firmly established by a long line of cases following upon Re Polymer Corporation (1958), 10 L.A.C. 31 (Laskin). Some of the more recent arbitration awards which have cited with approval the award in Re Polymer are: Re Maritime Employers' Association (1975), 1975 CanLII 2137 (NS LA), 10 L.A.C. (2d) 225 (Christie); Re Charterways Transportation Limited (1976), 1976 CanLII 2172 (ON LA), 12 L.A.C. (2d) 85 (Betcherman); Re Canvin Products Limited (1976), 12 L.A.C. (2d) 146 (Shime); Re Welland Forge Limited (1979), 1977 CanLII 2944 (ON LA), 15 L.A.C. (2d) 280 (Mclver); Re Atomic Energy of Canada Limited (1978), 1978 CanLII 3468 (ON LA), 18 L.A.C. (2d) 302 (Weatherall); and Re Fish International Canada Limited (1982), 1982 CanLII 4994 (AB GAA), 7 L.A.C. (3d) 25 (Anderson). That principle in Re Polymer has been followed also by the Supreme Court of Newfoundland in Re A-G Newfoundland v. Newfoundland Association of Public Employees (1976), 1976 CanLII 1274 (NL SC), 12 Nfid. P.E.I. R. 495, 74 D.L.R. (3d) 195 (S.C.) and by other high courts in Canada, a circumstance noted by arbitrator Shime in Re Canvin, supra. The Court in A.G. Newfoundland accepted that trade unions are not absolutely liable for unlawful strikes, but it is noteworthy that it also clearly asserted at page 206:

"While proof of the strike contrary to the provisions of a collective agreement does not necessarily create an absolute liability, I consider that it does create a prima facie case of liability and that the onus shifts to the union to establish those things mentioned in the preceding paragraph.".

The reference to “… those things mentioned in the preceding paragraph" was in respect of 11 steps which the union, in the Court's opinion, could have taken to avoid liability.

[8]. A trade union's liability in a strike situation where a collective agreement is in operation is a contractual matter and is different from liability in a tort situation. Therefore, liability is to be determined by resorting to the terms of the collective agreement and interpreting those terms in light of relevant industrial relations considerations. See Re Canadian General Electric (1951) 2 L.A.C. 608 (Laskin) at page 609. A trade union is committed by the acts and omissions of its officers and other officials and its liability in a strike situation during the operation of a collective agreement cannot be limited by pleading that the strike was instigated by an officer or official lacking the power to call a strike. See Re Polymer, supra, at page 36. A trade union has an obligation to enforce a no-strike provision in a collective agreement by refraining from instigating, participating or condoning strikes during the term of a collective agreement; by making reasonable efforts to head off a likely strike; and by acting promptly to end a strike. See Re Polymer, supra at pages 36 and 44. In meeting this obligation to enforce a no-strike clause, the executive officers of a trade union have a higher order of duty with respect to the enforcement of the no-strike provisions in the agreement than do lesser officials such as stewards and committeemen. Generally, executive officers have a duty to act positively to avoid or end strikes as well as to refrain from instigating, promoting or condoning them, whereas stewards and committeemen have a duty to refrain from encouraging, instigating or participating in strikes during the term of a collective agreement. See Re Polymer, supra at pages 36, 39, 40 and 44. Professor Laskin, as he was then, had this to say in Re Polymer, supra, at page 39 with respect to the obligations of stewards and committeemen.

"Stewards or committeemen who are put forward by a union as its representatives for department or area grievance adjustment must be expected to know that their very status and function underlines the impropriety as well the illegality of a strike while a collective agreement is in force. Thus it follows that a strike called or instigated by a steward or committeeman in his area is a strike for which the union must accept liability under Article 8.01. Steward action is union action in this respect."

At page 40 of his award, Professor Laskin ascribes a higher duty to the executive officers of a trade union, that is a positive duty to avoid strikes during the term of a collective agreement as opposed to the duty of stewards to merely not to participate in or encourage unlawful strikes.

[9]. The judgement in A-G Newfoundland, supra, discusses the liability of a trade union in an unlawful strike in circumstances where the evidence indicates that stewards went on strike and participated in picketing. The collective agreement did not contain a positive responsibility of stewards to uphold the collective agreement similar to that in Article 23 of the Agreement herein. Goodridge, J. comments about the stewards' role in those circumstances at page 208 as follows:

"I am of the opinion that shop stewards have a very special role to play in labour-management relations. It is their function to bring the problem areas to the surface and to clear the air by a frank discussion with management.

In this a shop steward becomes an agent of the union, or in this case, the association. Notwithstanding that they may be elected by a unit, when elected they operate on behalf of the recognized bargaining agent.

Yet in this case, we find the shop stewards not only on strike but actually picketing. There is no evidence that they were then or at any time thereafter suspended, disciplined, removed from office or otherwise dealt with by the association."

(emphasis added)

One of the steps which, according to the Court, the union in that case could have taken to avoid liability was to "... have forthwith suspended the shop stewards".

[10]. The foregoing arbitral and judicial principles are the ones applicable to the facts in the instant case.

[11]. The key fact in this case is that the steward Boulard instigated the strike. He admitted this to a senior official of the International during the official's investigation of an allegation that Boulard had shut down Dominion's job on the E.B. Eddy Forest Products Limited project at Espanola, Ontario ("the project"). Boulard admitted that he had been involved in taking the ironworkers off the project; he had gone around the site to where contractors other than Moore were working in order to take their ironworkers off the job; and on his way off the job on the day of the strike, he asked two other stewards for their support.

[12]. Nor did the Board have to rely solely on the evidence of Boulard's admission in order to find that he caused an unlawful strike. In this respect see paragraphs 30 and 31 of the Board's decision.

[13]. The evidence before the Board was that Boulard had not been appointed steward by the business agent, in this case Gordon Verdecchia, as provided for in Article 23 of the agreement which is set out at paragraph 25 of the Board's decision. Boulard appointed himself steward for Moore when he arrived on the job and found that there was no steward for the ironworkers employed by Moore. He then went to Moore's office trailer and introduced himself to Ernest Davidson, Project Manager for Moore, as the ironworker job steward for Moore's ironworkers. That is also when Boulard raised the dispute about assigning to millwrights the work of aligning the kiln. Prior to him raising the issue, there had been no dispute about that work on this project. Verdecchia came to the project the next day to deal with the issue. After examining the work, the basis on which Moore had assigned it to the millwrights and having discussed it with Boulard, Verdecchia agreed with the assignment made by Moore. Boulard disagreed with Verdecchia. When Boulard and Verdecchia went together to the kiln an argument erupted there with two Noront steel employees when Verdecchia told them that ironworkers would not be aligning the kiln. The evidence was that they also strenuously opposed his decision. He then left the project without altering his decision. Boulard was well-known to the other members of Local 786 and was known to be the steward for Moore's ironworkers and the person to whom other ironworkers on the project would look with respect to the protection of their work jurisdiction interests on the work being done by Moore. The evidence that Jim Lajeunesse, President of Local 786, was apprehensive that any attempt to remove Boulard from the project might interfere with getting the ironworkers to return to work (see paragraph 31 of the decision), is witness to Boulard's influence in the circumstances existing at the time of the strike. Boulard reported for work on the morning of the strike but did not start to work. Instead, he went to Moore's office trailer and told two of Moore's staff that he and D'Allaire, the other Moore ironworker, were "wobbling" the job, an unmistakeable reference on construction sites to walking off the job or striking. Boulard was with the first group of ironworkers to walk off the project. There were approximately 75 to 80 ironworkers employed on the project, of whom 65 were employed by Dominion. Only 15 of the total ironworkers employed were members of Local 786, 10 were permit card workers out of that local and the remainder were working out of Local 786 on travel cards from other Locals of the International. John Powers, ironworker chief steward for Dominion, with some 30 years experience in the trade, most of that time acting as a steward or chief steward while employed by Dominion, graphically expressed the psychology of the trade with respect to strikes in terms of "You've got to understand the trade. When you see your fellow members going out, you've got to go with them.". He also testified that, when you have men from out of town locals on a job and they start to walk off on a Friday, there is no way of stopping them or of getting them back once they are off the job site. He also commented that, when you are working in another local's territory and the local members go off the job, if you want to work there again, you go with them.

[14]. In light of that kind of evidence and the standard of conduct adopted in Canadian General Electric, supra, for a union under a contractual obligation of the sort expressed in Article 26 of the agreement, the Board found at paragraph 27 of the decision that Boulard had breached the contractual obligations of the agreement (Article 26) and the prohibitions in section 74 of the Labour Relations Act which reads as follows:

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.

Because he was an official and agent of Local 786, the Board also found that his actions in breaching the collective agreement and the Act made Local 786 liable for the strike.

[15]. That was the basis for finding Local 786 to be liable for the unlawful strike. While that basis was sufficient in itself for a finding of liability, the Board observed additionally at the end of paragraph 34 that ..... Local 786 might still have been found liable for the strike on the basis of the failure of its officials to properly assess the need for action to avert it. Prior to making that observation, the Board had acknowledged at paragraph 32 of its decision that Lajeunesse and Verdecchia had acted promptly and effectively to ensure an orderly return to work on the Monday after the Friday strike, but it also had expressed doubt about how they met their obligations as responsible officers or officials of the union to head off unlawful strikes, particularly so with respect to Verdecchia (see paragraph 33). Professor Laskin in Re Polymer, supra, having stated at page 36 that the responsible officers of a trade union have a duty to enforce a no-strike provision of the collective agreement not only by refraining from instigating or promoting a strike but by acting promptly with reasonable efforts to bring a spontaneous strike to an end, had the following to say at page 44 about their duty to head off a likely strike:

"The Board agrees that a union bound by a [no-strike clause] has a duty not only to act reasonably to bring a strike to end, but a duty also to make reasonable efforts to head off a likely disruption. In assessing the conduct of the responsible union officers, all of whom (save Kahane) were employees with their ordinary work to perform, caution must be exercised in interpreting a course of events such as those in review here, lest one substitute hindsight as the test of what should have been done as a matter of reasonable foresee ability."

(emphasis added)

In Re Welland Forge, supra, the arbitrator found that there had been an unlawful strike with respect to the October 14th, 1976 day of protest against the Federal anti-inflation legislation and he further found at page 286 that

"... the union did absolutely nothing to prevent the work stoppage or strike ..., and in fact not only took no steps to discourage the said work stoppage, but on the contrary encouraged it.".

The arbitrator appears to have relied on the Polymer line of reasoning in arriving at that conclusion as did the arbitrator in Re Charterways, supra. The issue in that case was whether the union took sufficient action to avert a strike, not whether it had called the strike. The arbitrator in that case concluded as follows at page 91:

"Once the strike began, union officials had a duty to act quickly to bring it to an end. Mr. Beckwith took a first step by hurrying over to the meeting of strikers where he told them to return to work. While he did not detail the penalties and fines for an illegal strike under the Canada Labour Code, R.S.C. 1970, c. L-l, he did inform the men that they were in violation of the collective agreement and thus open to sanctions. Nevertheless a declaratory statement that the union is opposed to the strike must be backed up by action."

"On the evidence the union did very little. The calling of an executive meeting and the tentative approach to an official of another Charterways union to intercede is not impressive. If the local executive had lost control of the membership at the April 25th meeting, as Mr. Beckwith claimed at the hearing, management and/or the national union executive should have been informed in order that either or both could have exercised disciplinary powers. Neither step was taken. Nor did Mr. Beck-with or the local executive convene a membership meeting within the first few days or make any evidence effort to withdraw stewards and committeemen from the strike."

(emphasis added)

It is significant that the arbitrator in Charterways found, as a fact, that the trade union had made some effort to avert an unlawful strike, but this effort was not sufficient to avoid liability.

[16]. While each of the arbitrators in those three cases were dealing with different fact situations as among the three cases and with the instant case, they were dealing with the common issue of the duty of responsible trade union officers and officials with respect to the enforcement of the no-strike provisions during the term of operation of a collective agreement. They leave no doubt that trade union officers and officials have a duty to act reasonably to avert unlawful strikes.

[17]. Verdecchia is a full-time, paid official of Local 786. He has been its business manager for seven years, the key officer in the administration of the union's affairs, particularly with respect to the enforcement of its collective agreements. Local 786 has the administrative authority for the enforcement of the Agreement in the Local's geographic jurisdiction. One of those responsibilities is the appointment of stewards, a responsibility assigned by Article 23 of the Agreement to the "Business Agent", in this case Verdecchia. He had not appointed Boulard as steward. Boulard had appointed himself and Verdecchia must have known that. Yet when Boulard strenuously disagreed with Verdecchia' s decision that ironworkers would not align the kiln and the two Noront Steel ironworkers vociferously sided with Boulard, Verdecchia did not act to establish his control and authority. With that kind of challenge to his own authority, Verdecchia should have acted immediately to remove Boulard as steward. It is by no means uncommon in the construction industry for business managers to quite properly resort to such action. Verdecchia did not and he and Local 786 must bear the consequences, one of which, in this case, is liability for the strike.

[18]. The Board, in assessing Verdecchia's conduct, was not ignoring the caution against substituting hindsight for reasonable foreseeability expressed by Prof. Laskin in the emphasized passage quoted above from page 44 of Re Polymer. Verdecchia is not an employee of Moore, Dominion or any other ironworker contractor who, like Powers, had his ordinary work to perform. It is not indulging in hindsight to expect a full-time union official of Verdecchia's experience to weigh the factors at play when he came to the project on the Thursday to deal with the work assignment issue. He knew, or should have known the ease with which a construction site can be "wobbled" on a Friday, particularly in view of the large proportion of out-of-town ironworkers on the project and the psychology of his trade with respect to strikes as evidenced by Powers. Nor, given those circumstances, is it imposing on Verdecchia a standard requiring the skill of a "Cassandra", as Local 786 counsel puts it in his letter, to expect him to conclude that there was a substantial risk of a strike which required of him more action than he took.

[19]. Counsel's view expressed in his letter that "The worst that can be said is that Boulard reacted to Verdecchia's instructions in such a way as to let Verdecchia know that he was not happy with the decision concerning the work assignment." is a significant under-statement of the evidence. Boulard knew the project and was well-known at least to the members of the Local. Verdecchia would have been aware of that and of the fact that Boulard had been an executive officer of Local 786. Given those circumstances, the strength of Boulard's disagreement with Verdecchia's decision, the support for Boulard's position by the Noront iron-workers and the awareness, which an officer of Verdecchia's responsibility and experience would have, that work assignment disputes are one of the common causes of work stoppages on construction sites, there was ample evidence to alert Verdecchia to the risk of a strike. Therefore it would not be setting an unreasonable standard to expect Verdecchia to anticipate the risk of a strike. Then, in order to protect the union from liability for a strike if one materialized, besides removing Boulard as steward, Verdecchia could have checked with other stewards on the job to see whether the disagreement was localized with Boulard and Moore's ironworkers; instructed the stewards to express his own caution to the members against striking if the disagreement spread; and remained on the job himself or arranged for Lajeunesse to come to the site at the beginning of the shift on Friday.

[20]. Having regard for the evidence which was before the Board with respect to Boulard's and Verdecchia's conduct, the Board's finding of fact with respect to Boulard having violated the no strike provision of the Agreement and its observations with respect to the potential liability for Local 786 because Verdecchia failed to take adequate and appropriate action to head off the strike do not deviate from the factual standards or the legal principles for assessing trade union liability for unlawful strikes established in Re General Electric and the Polymer line of cases cited above. Part of the concern of counsel for Local 786 that the Board has strayed from those standards and principles seems to arise, at least in part, from the Board's references in paragraphs 16, 33 and 34 with respect to Dominion's ironworker chief steward, John Powers. The Board acknowledges that the general principle of law with respect to stewards is that they not participate in or encourage unlawful strikes, as opposed to the positive duty of officers to avoid legal strikes and to act promptly and convincingly to bring them to an end once underway.

[21]. This general principle of law is recognized by this Board. It is a principle which exists, not in a vacuum, but for a purpose as demonstrated in Re Polymer, supra:

"Spontaneous strikers who find stewards or committeemen in their midst, apparently acting with them and doing nothing to induce them to return to work or terminate any demonstration in which they may be engaged, may reasonably believe that they are enjoying official union support."

The principle, however, is subject to a reasonable application and arbitrators will show flexibility in applying it. For example, in Re Fish International Canada Limited (1982), 1982 CanLII 4994 (AB GAA), 7 L.A.C. (3d) 25 (Anderson-Alberta), a board of arbitration recently held a trade union to be liable in an unlawful strike in which a steward failed to take any positive action to avoid a walkout and, in fact, joined the walkout. The arbitrator relied on the rationale quoted above from Re Polymer.

[22]. The Board's comments about Powers were not made to hold him to the same level of duty as Verdecchia and the Board has not concluded that Powers had a positive duty to avoid the strike. That does not mean that the Board had no cause to be concerned about Power's failure to alert either Verdecchia or Lajeunesse by the end of the day shift the day prior to the strike to the circumstances of which he was aware. The Board disagrees with counsel that “…there was no logical reason for Powers to phone Verdecchia or Lajeunesse on Thursday, as he was aware that Verdecchia was on the building site on that very afternoon". The evidence before the Board was that by the end of the Thursday and after Verdecchia had departed the project, Powers knew that there was a dispute about work on the kiln, that Verdecchia had been to the project to deal with the problem, that Boulard, as ironworker steward for Moore, was upset by Verdecchia' s decision that ironworkers would not do the work and ironworkers for Moore, Noront and Comstock disagreed with Verdecchia's decision. It was quite apparent to him that Verdecchia' s visit had not resolved the problem. Powers has 30 years experience in the ironworker trade and during that period has been either steward or chief steward on nearly every job he has worked. His testimony demonstrated a keen insight into the psychology and dynamics of how strikes often begin in his trade. He may not have thought the work assignment issue had reached the proportions which would cause a strike the next day. It seems to the Board, however, to be inconsistent with the scope of his experience, his insights into strikes and the information in his possession at the end of the day, that he did not see any need at least to inform Verdecchia or Lajeunesse of. a potential strike risk.

[23]. The Board has accepted and respectfully agrees with Prof. Laskin in the general proposition in Re Polymer, supra, that stewards do not have the same positive duty to avoid unlawful strikes as do higher union officials. While that accepted principle places stewards at the other end of the spectrum of responsibility from executive officers who do have a positive obligation to avoid unlawful strikes, that does not mean, in the Board view, that a steward's responsibility is unalterably anchored at one end of the spectrum. The facts in a particular case could place a steward's responsibility closer towards that of executive officers. The facts in the instant case, in the Board's view, impose a higher or additional duty on Powers than the general proposition stated in Re Polymer. That duty is one of reporting the true conditions and facts with respect to compliance with the provisions of the Agreement, including the provision in Article 26 prohibiting strikes during the term of the Agreement.

[24]. It is proper for several reasons to impose on Powers a reporting duty in addition to his general responsibility not to engage in an unlawful strike. First, he clearly had the authority to report. With authority comes responsibility. That responsibility to report in this case was triggered by the fact that Powers was aware of Verdecchia's visit to the site to deal with the work assignment issue; he was aware of the dispute and Boulard's connection with it; he was aware at the end of the day that strong opposition remained to Verdecchia's decision that ironworkers would not do the work at issue; he has long experience as a steward in the trade; knows or should know the sensitive relationship between work assignment disputes and unlawful strikes and is keenly aware of the dynamics of unlawful strikes in his trade. Second, it makes industrial relations sense for parties to be held accountable for violating their obligations arising from a collective agreement. A person in a position of authority with an employer or trade union bound by a collective agreement should exercise his authority, to the extent it exists, as a reasonable person would. Power's failure to report what he knew of the extent of disagreement with Verdecchia's decision existing at the end of the shift on the day before the strike was not reasonable in the circumstances. Third, the Board's conclusion that Powers has a duty to report is reinforced by the parties' voluntary imposition of such a duty on stewards in Article 23:

"... [The steward] shall see that the provisions of this Agreement are complied with and report the true conditions and facts".

(emphasis added)

That statement encompasses more than a mere duty to comply with the Agreement, but the Board does not need to rule on what it encompasses except to conclude that it imposes a reporting duty on Powers.

[25]. With respect to the comment in the reconsideration request that "... there is no logical reason why a finding against Local 786 should not also be applicable to the International as there was as much responsibility in legal terms according to the Board's finding on the International as there is upon the Local.", the Board only has this to say. The Board, at the commencement of hearing, did not accept, as stated by counsel, that the International could be removed as a named respondent. The applicants sought leave of the Board to withdraw the application insofar as it pertained to the International because of assurances they had received about the International's conduct with respect to the strike. The Board refused consent and dismissed the application with respect to the International because of the stage of the proceedings.

[26]. Counsel for Local 786 contends that the cases which have imposed an obligation upon a trade union for the acts of its officers or stewards rest on the premise that the officer or steward is acting as an agent of the trade union and is seen to act in such a position and is seen to have the authority to call the strike at issue. Counsel asserts that the essence of the agency concept is that the employer who is dealing with such agent (Boulard in this case) must believe that the agent has the unfettered right to cause the problems that were created by actions of the officer or steward. Counsel takes the position that the Board erred in its decision in that it did not properly apply the principles of law with respect to agency as it relates to the facts of this case. The concepts of agency and the issues of ostensible or apparent authority to which counsel frequently referred in his reconsideration request were argued before the Board. They were not addressed by the Board in its decision and it is readily apparent from the decision that they were not addressed because they were not relevant to the fact situation before the Board. The concepts of agency asserted by counsel apply to circumstances, for example, where parties are concluding a contract or some similar transaction. What the Board is dealing with here is a situation where an official of Local 786, Boulard, its members and other ironworkers within its administrative jurisdiction under the Agreement have unilaterally acted against their employers Moore and Dominion in violation of the Agreement binding on those persons and the employers. It is quite clear from the awards in Re General Electric and Re Polymer, supra, and the cases which followed them, that the arbitrators were dealing with a trade union's liability within the contractual framework of a collective agreement which contained a prohibition against strikes during its term, or was deemed by statute to contain such a provision. That is the relevant contractual framework here and what is important in that framework is not how the employer views the actual or ostensible authority of stewards or other officials or officers of the trade union, but how the employees view it. As Professor Laskin stated in Re Polymer, supra, at page 39:

"... Spontaneous strikers who find stewards or committeemen in their midst, apparently acting with them and doing nothing to induce them to return to work or terminate any demonstration in which they may be engaged, may reasonably believe that they are enjoying official union support.".

[27]. This point is brought home by referring to the case cited by counsel for Local 786 in support of his agency argument. In that case, Canadian Laboratory Supplies Limited v. Englehard Industries of Canada Limited (1979), 1979 CanLII 44 (SCC), 97 D.L.R. (3d) 1 (S.C.C.), the issue was whether the agent of a company had the authority to enter into a contract with another party. That case is entirely distinguishable. The issue of ostensible and apparent authority is simply inapplicable to the instant case, unless viewed in the context of employee perception. The employer’s perception is irrelevant at this point, because the contractual arrangement (i.e. the collective agreement) had already been completed. The sole issue, then, was whether one party to that agreement was in breach. As a result, this Board had to determine on the facts whether Local 786, as represented by its officers, violated the Agreement. The perceptions of the employer as to which official had the authority to act on behalf of Local 786 is really quite irrelevant, as we are not dealing with a consensual arrangement whereby the parties' perceptions and intentions become relevant. The question which the Board was required to answer was whether Local 786 was liable for the unlawful strike as a result of the actions of its steward Boulard or other officers in light of their respective duties under Articles 23 and 26 of the Agreement. Those duties derive from an interpretation of the agreement and the principles which the Board has found to be relevant to the facts of this case are those set out in the cases referred to above, cases which also rely primarily on interpretation of the collective agreements in question. Upon applying those principles to the facts of this case, the Board found Local 786 to be liable for the unlawful strike. It did so on the ground that Local 786's steward, Boulard, instigated the strike, a ground by itself sufficient to hold Local 786 liable. The Board also found that Verdecchia's failure to assess the risk of the strike occurring and to take measures to avert it commensurate with his experience and his authority as a union executive was a sufficient further ground for finding Local 786 liable for the strike. Liability thus established, it became necessary to assess damages.

DAMAGES

[28]. Paragraphs 40, 41 and 42 of the Board's decision set out the premise for Dominion's schedule catch-up claim for the time lost on the day of the strike together with its evidence supporting the premise and the claim, all of which was accepted by the Board. The documentary evidence to which the reconsideration letter refers consists of daily work reports containing comments on weather conditions and on problems encountered during the shift and recording the duration of the shift in hours and, if less than eight hours, the reason why. They also record the number of ironworkers, amongst others, who worked the shift. The submission on that evidence contained in the reconsideration letter were made by counsel for Local 786 in the Board's hearings on those matters. Counsel for the applicants and for Boulard also made submissions on that evidence in the hearings. The Board had considered those submissions when it acknowledged in its decision that the daily work reports did not specifically connect the overtime hours worked on any specific day to catch-up from the strike and also when it went on to find that the overtime recorded on those reports for the relevant period after the strike was consistent with Dominion's viva voce evidence that, because of the strike, it had had to resort to overtime in order to meet the extended completion dates set by E. B. Eddy. In the Board's view, the assumptions underlying Dominion's claim for the cost of making up for the schedule delay caused by the strike was reasonable in the circumstances and its calculation of those costs was practical and reasonable.

Dominion's evidence satisfied the Board on a balance of probabilities that, but for the strike, the financial losses which it claimed to have suffered would not have occurred.

[29]. The Board, having examined anew the position taken by counsel for Local 786 on Dominion's assumptions and its supporting evidence, finds no reason to change its view. The fact that Dominion's documentary evidence did not establish that the overtime worked after the strike was, in counsel's words, "purely due" to the strike is not sufficient grounds for the Board to refuse altogether Dominion's claim. In this respect, the Board finds the comments of Prof. Laskin at page 1093 in Re General Electric, supra, to be quite appropriate to the circumstances of the instant case:

On balance, the Board is of opinion that the very occurrence of a work interruption in an established business which was operating at an annual profit and had been so operating over a number of years immediately preceding, was a sufficient ground, in the absence of contradictory evi­dence, to enable it to inquire into the actual amount of loss. Insofar as this amount involved a claim for lost profits, the Board cannot reject the claim by reason only of difficulty in precise ascertainment. The evidence furnished by the Company may not be the best way of proving that profit loss but a practical calculation based on examination of records made available to Mr. Hutchinson's firm. This Board is entitled to act on the calculation so submitted, although it may make allowances in favour of the Union to ensure against inaccuracies and overestimation by reason of the assumptions underlying the Company's chosen method of proof.

(emphasis added)

[30]. Counsel contends as well that the Board failed to follow the principle enunciated in Re Canadian Kenworth Co. Limited, an unreported decision of Prof. J. Weiler which issued February 22, 1980, and was discussed in Current Labour Developments, January 1981. That award, according to counsel, stands for the proposition that damages claimed for expenses incurred from a strike cannot be properly determined until the employer's year end when it can be seen whether the claimed expenses caused some reduction in profits. It is obvious from paragraph 36 of the decision in the instant case that the Board rejected that proposition. It is likewise obvious that the Board accepted and applied the proposition that, since Moore and Dominion were working under fixed-price contracts, proven, additional costs incurred because of the strike would reduce the mark-up (or profit) remaining between the fixed price of the contracts and the costs on which they were bid. If the additional cost can be established reasonably at the time it is incurred, waiting until the financial costs are final at the end of the fiscal year, or in the case at hand, until the job has been completed, is unlikely to add any greater certainty to the calculation. There is no particular magic to the fiscal year end or the end of a job which says that is the only time or the proper time when damages can be accurately measured. Depending upon the specific circumstances, the impact of the extra costs on profit may be more obscure at either of those two end points. For example, the evidence before the Board was that there would be no profit left in the job by the time it would be completed. If in fact Dominion were to suffer a loss on the job which was less than the amount it has claimed as extra overtime costs, that would not establish that Dominion only incurred overtime costs equivalent to the loss. If Dominion's labour costs of doing the job exceeded the bid cost by, say, $15,000, that would not be better proof that it incurred the $13,120 for the overtime cost of making up for the delay in the schedule. Nor would it prove that overtime costs were not incurred as a result of the strike if Dominion had brought the job in at $15,000 under the bid cost.

[31]. The important condition in the Board's opinion is whether the claimant establishes an assumption for its claim which withstands a test of reasonableness in all the circumstances at play. Dominion was behind schedule on the extended completion dates already when the strike occurred. The strike put them a further 640 man-hours behind. It decided to work overtime to catch-up. The Board has found that the evidence before it supports the claim that Dominion worked at least that number of man-hours at overtime rates for that purpose. Were it not for the unlawful strike of its ironworkers for which the Board has found Local 786 liable, Dominion would not have incurred that extra cost. Therefore it was entitled to claim damages equivalent to those costs and the Board was entitled to award the damages. An argument might be made in a suitable fact situation that an employer like Dominion could have a supportable claim even if it was on schedule or ahead of schedule on a fixed-cost construction job when an unlawful strike took place. It is not uncommon in the construction industry for a contract to provide for payment of a performance bonus if the contractor brings the job in on time or ahead of time. Would it be unreasonable for a contractor which was in a position where the bonus was still attainable at the time of an unlawful strike to schedule overtime work after the strike for the purpose of restoring its position to what it was before the strike and then claim as damages the extra cost incurred?

[32]. It cannot simply be said that the entitlement to damages can be determined only when a particular operation has completed its particular business cycle. That might, in fact, be the most difficult time to accurately assess damages because so many intervening events may have impacted on the profit or loss of the operation that the financial impact of the strike is obscured. In other fact situations, the financial impact of the strike might be accurately determined only after the business cycle has been completed. What is significant is whether the particular facts make it possible to determine the damages with reasonable accuracy at the point in time when the arbitrator is dealing with it. In the case at hand, the Board was satisfied that the necessary calculations to establish damages could properly be made on the evidence before the Board and at the time the claim was being heard.

[33]. The Board did not consider the principle for which counsel for Local 786 states the Re Canadian Ken worth award stands to apply to the fact situation herein. That award was preceded by Re Mansfield — Denman General Company Ltd. (1978), 1978 CanLII 3410 (ON LA), 18 L.A.C. (2d) 155 (Hinnegan) in which the arbitrator declined to award damages claimed to have resulted from an unlawful strike on October 14, 1976, the "National Day of Protest". At page 159 the arbitrator describes the issue before him as:

…whether the company suffered a loss as a result of the one-day strike and, in our view, that determination cannot be made without an examination of the company's profit and loss position for the relevant period.

Later on the same page, the arbitrator observes that:

…it does not automatically follow that one day's interruption of production resulted in a net loss of production and an ensuing loss of net revenue.

(emphasis added)

Finally, on page 161 the claim for damages is dismissed with the following comments:

Accordingly, the company has not established that, but for the interruption in production on October 14, it would have been in a better position mo­netarily than it was given the fact of the work stoppage, thereby falling short of satisfying its onus of establishing the fact of loss or damage resulting from the work stoppage.

(emphasis added)

The result for all practical purposes is identical to the result reached by Prof. Weiler in Re Canadian Kenworth, supra, some two years later. The arbitrator in Re Mansfield-Denman, supra, on the way to reaching that conclusion commented as follows at page 159:

In our view, such continuing costs or expenses can only become a loss if the production, and the resulting revenue from that production, which would have taken place on the date in question was irretrievably lost to the company and which would have been otherwise realized on that day to cover or offset those fixed costs. In other words, if total production and revenue is no different at the end of the appropriate fiscal period during which the day in question fell than it would have been had full production continued in the normal course on that day, then the company would have been in no different monetary position with or without that interruption in production, and there would have therefore been no loss or damages flowing from the work stoppage.

(emphasis added)

[34]. Those last quoted comments of arbitrator Hinnegan and his earlier comments that a ... net loss of production and an ensuing loss of net revenue." do not automatically follow from a day's loss of production may have been justified by the particular facts before him. On those same facts and for the reason that loss or damage may not have been measurable at the time in question, the employer may not have satisfied its onus of establishing the fact of loss or damage. But this Board does not see his comments and conclusion in that case as standing for the general proposition that loss or damage flowing from an unlawful strike cannot be measured until the end of the appropriate fiscal period. Nor does the Board agree with the general proposition implicit in the emphasized passage of the last quotation above that no damage has been suffered if, at the end of the applicable fiscal period, the employer was in no different monetary position with or without the strike. The question is whether the impact of the strike can be quantified at a point in time relevant to the claim being asserted so that damages are known. In the case at issue an analysis of Dominion's financial results at its fiscal year end would be irrelevant. Dominion's contracts at the project are discrete from the rest of its enterprise and the impact of the strike on those contracts is the issue which the Board has had to address. Even if the fiscal period end is the relevant time, the mere fact that "... total production and revenue is no different ..." does not mean that there has been no adverse financial impact from the strike. The "no different" result may have been the composite result of many factors intervening since the strike and totally unrelated to it. It is an equally valid proposition that but for the strike, costs would have been lower and profits higher or losses lower. The problem is to identify what the result might reasonably have been, but for the strike.

[35]. Prof. Laskin was addressing that problem in the passage quoted above from his award in Re General Electric, supra, and in so doing appears to go against the ratio, some 30 years later, in Re Canadian Kenworth and Re Mansfield-Denman that a loss of profit could only be established, in a claim for damages as a result of an unlawful strike, at the end of the fiscal period. In Re General Electric, Prof. Laskin awarded damages for expenses continuing during the strike and for loss of profit. Ten years later he referred to that award in awarding damages for a loss of net operating profit and for continuing expenses in Re Husband Transport Company Limited (1962), 13 L.A.C. 266 (Laskin). Prof. Laskin sets out the formula for calculating compensable losses at page 274:

This method of calculating compensable loss reduces itself to the following: the company would have gained $3,600.00 in revenue had there been no strike. It would have had to lay out a certain amount for wages to gain that revenue and certain sums for overhead expenses which it saved in this particular case (e.g. cost of gasoline and servicing of vehicles). The total of the sums not paid is deductible from the total revenue not gained; the balance is the extent of the liability;

He later comments also at page 274:

However, where workmen are involved in a manufacturing or service industry and the labour element in the operation is joined to other organized elements of the operation to produce the product or render the service, it is quite reasonable to charge the defecting workers with the value of the wasted overhead charges which cannot be halted and which would have been returned in the revenue that would have resulted had the labour force continued to work under its contract commitment.

Those comments, his formula for calculating compensable losses and his awarding of damages for loss of net profit and continuing expenses suggest that Prof. Laskin still was not antici­pating the approach later to be taken in Re Canadian Ken worth and Re Mansfield — Denman.

[36]. Those two awards appear to have contradicted without distinguishing Prof. Laskin's awards in Re General Electric and Re Husband Transport. Moreover, in Re Canadian Ken-worth Company (1980), 1980 CanLII 4040 (BC LA), 26 L.A.C. (2d) 279 (Williams), which for clarity and ease will be referred to as Canadian Kenworth (No. 2), the arbitrator effectively overrules the point of view expressed by Prof. Weiler in the earlier case. This award was not argued by counsel for Local 786, either in hearing before the Board or in the letter requesting reconsideration. The company in Canadian Kenworth (No. 2) was claiming only the overhead expenses which would have been recoverable from lost revenue attributable to the lost production, although it asserted that it could have claimed for loss of profits as well.

[37]. Arbitrator Williams, after seeking to distinguish Prof. Weiler's Canadian Kenworth decision on other grounds, finally overruled him with the following comments at page 287 before awarding damages to the company as claimed:

It may be that the Mansfield decision and Mr. Weiler's decision which follows it are distinguishable, because in neither does there appear from the award to be any evidence as to what revenues might have been earned from the sale of the product, or whether the overhead would have actually been recouped. I must say though that in respect of the Weiler decision, if the evidence was similar to that before me, then regrettable though it may be, 1 must follow the dictates of my own reasoning and conscience and, with respect, differ from his conclusion.

(emphasis added)

The arbitrator had dealt as well with Re Mansfield — Denman before concluding that it was unnecessary to await the end of the fiscal year to calculate and award damages. In the course of dealing with the Mansfield — Denman award, the arbitrator in Canadian Kenworth (No. 2), at page 285, quotes the dissenting opinion in Mansfield- Denman and appears to approve its reasoning:

…to suggest otherwise is to say that unions may indulge in any number of short work stoppages with impunity, if it can be shown that the company, by whatever means, was able to make up the lost production at a subsequent time.;

after which he goes on to say at p. 285 that:

If, on the other hand, the majority in the Mansfield case would require that a company establish not only a loss of revenue to offset the expenses thrown away in a work stoppage, but also that it did not make up such loss of revenue by the end of the fiscal period, then I respectfully disagree with the majority and to the extent that Mr. Weiler concurs in that view in his award, must with deference disagree with him also.

and again at page 286:

In these cases [referring to earlier jurisprudence], entitlement to damages is not predicated upon the expiry of a fiscal period as it is in the Mansfield decision, supra. And why should the end of a fiscal period of an employer be the all important date for determination? It is true that production at the work place is not the same every day.

The essence of arbitrator Williams' reasoning has been applied to the facts which were before this Board in the case at hand. In the Board's view, that reasoning is equally suited to a case like this where the costs are of such a discrete nature.

CONCLUSION

[38]. Having regard for all of the foregoing, the Board is satisfied that, with respect to both the facts on which damages were assessed against Local 786 because of its liability for the unlawful strike against Moore and Dominion and the relevant law applied to those facts, damages were correctly awarded against Local 786 and in favour of Moore and Dominion. The parties had a full and fair hearing and the request for reconsideration is lacking of any new evidence which, with due diligence, could not have been obtained previously or of any request to make representations not already considered by the Board. Nor does the request raise any other grounds which would cause the Board to reconsider, vary or revoke its decision.

[39]. In the result, the Board is of the opinion that it should not reconsider, vary or revoke its decision which issued in these matters on April 21, 1983. The request of the respondent International Association of Bridge, Structural and Ornamental Ironworkers Local 786 is denied, therefore.