Ontario Labour Relations Board
[1984] OLRB Rep. August 1037
1164-84-U Acme Building & Construction Limited, Applicant, v. International Brotherhood of Electrical Workers, Local 1687 and Lou Popvitch, Respondents
BEFORE: M. G. Mitchnick, Vice-Chairman.
APPEARANCES: M. Contini and Jorma Vainjo for the applicant, Larry Lineham for the respondents.
DECISION OF THE BOARD; August 8, 1984
This is an application for a declaration and direction pursuant to the provisions of section 135 of the Labour Relations Act, as amended by an Act to amend the Labour Relations Act, 5.0. 1984, c.34, s. 3 (proclaimed in force June 27, 1984). It should be noted that brief reasons for decision were given in conjunction with an oral direction at the end of the hearing of this matter on August 8, 1984.
The applicant, Acme Building & Construction Limited, is a general contractor engaged in a project in the New Sudbury Shopping Centre, a new shopping mall in the City of Sudbury still partly under construction. The specific project for which Acme holds the contract is the construction of the office quarters of the Sudbury Regional Credit Union. Acme has a collective bargaining relationship with the carpenters, labourers, and rodmen, but not the electricians. It subcontracted the electrical work on this project to a non-union company, Menard Electric. A tenant of the owner, Campeau, having work done for itself elsewhere in the Mall, also contracted work out to a non-union electrical company. On Friday, July 27, 1983, the International Brotherhood of Electrical Workers, Local 1687, put a picket line on both "construction" entrances to the shopping centre, from 7 o'clock to 10 o'clock in the morning. That had the effect of stopping work on all projects. The respondent Lou Popovitch, the Business Manager of Local 1687, met with Campeau and Eaton, the other general contractor on site, that same day, and Campeau agreed that the electrical work of its tenant would be re-let to a union contractor. Campeau and Eaton also suggested that the picketing be confined to Acme's job in the Mall, and that Acme's name appear on the "unfair practices" signs being carried by the I.B.E.W. picketers. Mr. Popovitch agreed. Mr. Popovitch then telephoned Mr. Spiegel of Acme, and told him the picket-line would remain until Menard Electric was replaced, or signed with the I.B.E.W.. Mr. Spiegel indicated that Menard would not be replaced.
On Tuesday, July 31st the picket line re-appeared at the Mall, this time in the interior corridor outside Acme's construction project, and with "Acme" hand-written onto the picket signs. No tradesmen of the unionized subcontractors of Acme have crossed the picket line to perform work since that time, although reporting for their shift each morning to see whether the picket line continued. The only exception to that was the dropping off of a load of lathing materials on the morning of August 1st, and only after the respondent union's president gave his approval for that endeavour.
The Board is satisfied from the evidence that at least some of the employees working for sub-contractors under provincial agreements at the job site have been engaging in an unlawful strike. Mr. Lineham, appearing and testifying for the respondents, emphasized that the picketers physically prevented or threatened no one from crossing the line to go to work. He asserted, not in a facetious way, that the picketers "did not tell anyone not to go to work", and that the purpose of the picket line was "informational" only, i.e., to advise the members of the Sudhury public of what kind of practices were being carried on this project. The problem with that explanation is that it has long been recognized in this province that the affiliated building trades of the construction industry can be expected to, and do, respect each other's picket-line, without having to be expressly "told" to do so. See, e.g. Smith Bros. Construction Co. Ltd. v. Jones 1955 CanLII 152 (ON HCJ), [1955] 4 D.L.R. 255 (H.C.) where McLennan, J., observed:
There was no evidence that the pickets did anything else than walk up and down at the site of the construction jobs, carrying the signs. There was no evidence of any violence or disturbance or persuasion of any kind other than the mere fact of their presence with the signs, and it was not suggested there was any libel. However, in my opinion, if the development of the trade union movement has reached the point where workers will not cross a picket line to go to work, that is just as effective an interference with contractual relations as any other form of restraint might be.
- Section 135 has now been amended to read:
(1) 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 counselled or procured or supported or encouraged an unlawful strike or threatened to engage in an unlawful strike or any person has done or is threatening to do any act that the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike, it may direct what action, if any, a person, employee, employer, employer's 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.
[emphasis added]
The legislature has added the underlined words, but even before that was done, the Board, reflecting the reality of the construction industry, had issued cease-and-desist directions on the same basis against this kind of peaceful but unlawful activity. See e.g. Valentine Developments, [1973] OLRB Rep. Oct. 537; Wheelabrator Corporation of Canada Ltd., [1974] OLRB Rep. July 490. On the basis of practice in the industry, as well as on the unequivocal evidence placed before the Board, it cannot now be argued that the respondents' picketing activities were and are not acts that the respondents knew or ought to have known would, as a probable and reasonable consequence, cause the other trades on the job to engage in an unlawful strike.
- The Board accordingly directs the respondents and any related persons to whom notice of this order may come to cease and desist in their present picketing activities at the applicant's
job site in the New Sudbury Shopping Centre, or to engage in any other acts that are known, or ought to be known, that as a probable and reasonable consequence of which, other persons will engage in an unlawful strike.
- A copy of the Board's order will be filed in the office of the Supreme Court of Ontario, pursuant to the directions of section 135(3) of the Act.