[1985] OLRB Rep. August 1304
1148-85-U State Contractors Limited, Applicant, v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 552; Jerry Boyle, E. Deroche, W. Smith, Respondents
BEFORE: R. A. Furness, Vice-Chairman.
APPEARANCES: D. Jane Forbes-Roberts, Mario Cossarini and George Opacic for the applicant; L. Steinberg and J. Boyle for the respondents.
DECISION OF THE BOARD; August 16, 1985
The applicant has applied to the Board for relief under section 135 of the Labour Relations Act.
In a decision dated August 8, 1985, the Board issued the following decision and direction:
The hearing in this matter was held on August 8, 1985, in Windsor. At the conclusion of the hearing the Board issued the following decision:
For reasons to be given in writing, the Board finds that the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 552, has called or authorized an unlawful strike and that Jerry Boyle an officer, official or agent of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 552, has counselled, procured, supported or encouraged an unlawful strike and that E. Deroche and W. Smith as employees of State Contractors Limited have engaged in an unlawful strike at the University of Windsor's tunnel expansion project commencing on August 6, 1985. In the exercise of its discretion the Board makes the following direction:
I The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 552, is directed to cease and desist from calling or authorizing an unlawful strike.
II Jerry Boyle is directed to cease and desist from counselling, procuring, supporting or encouraging an unlawful strike.
III E. Deroche and W Smith are directed to cease and desist from engaging in an unlawful strike and are to perform the work which may be assigned to them, by State Contractors Limited commencing on August 9, 1985, at the University of Windsor's tunnel expansion project.
The reasons for that decision are now set forth. The applicant and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 552 ("Local 552") are bound by the terms of a provincial collective agreement between the Mechanical Contractors Association of Ontario and the Ontario Pipe Trades Council (the "provincial collective agreement") with respect to the industrial, commercial and institutional sector of the construction industry. This provincial collective agreement became effective on May 14, 1984, and remains in effect until April 30, 1986. This application arises out of an incident which occurred on August 6, 1985, at the applicant's job at the University of Windsor's tunnel expansion project (the "job").
In order to understand the incident which occurred on the job on August 6, 1985, it is necessary to refer to some concerns of Jerry Boyle the business manager of Local 552. The provincial collective agreement contains the following article:
24.6 Subject to existing jurisdictional agreements between trades, decisions of record, or established area practice, all brackets, hangers and pipe supports that are not specifically itemized and listed in a standard manufacturers' catalogue, are to be fabricated by members of the Union.
Mr. Boyle was concerned that article 24.6 was being violated by the applicant. He conveyed these concerns to Mario Cossarini, a branch manager for the applicant. The applicant had contracted to install and was in the process of installing pipe support brackets at the job. The pipe support brackets used on the job were supplied to the applicant by Forest Machine & Manufacturing Inc. ("Forest"). Mr. Cossarini contacted Forest on this concern of Mr. Boyle and received the following letter (the "letter"):
June 26, 1985.
State Mechanical Contractors.
ATT: Mario;
Per your order #250732-2002, we fabricated pipe support brackets. The labour was performed by a member of Local 552 Plumbers and Pipefitters.
Sincerely
Bernard Plant"
President
Mr. Cossarini advised Mr. Boyle of this state of affairs. Mr. Boyle was aware that Peter Salter, a member of Local 552, was one of the owners of Forest. Mr. Salter has retained his membership in Local 552. In 1981 Forest granted voluntary recognition to Local 552. While the collective agreement between Forest and Local 552 was not before the Board, it is clear that Forest, pursuant to the collective agreement, made contributions to the Mechanical Contractors Association of Windsor Industry Fund on behalf of Mr. Salter and on isolated occasions made similar contributions on behalf of another employee who was a member of Local 552. The Board was informed by Mr. Boyle that there was nothing in either the collective agreement or the constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada which would prevent Mr. Salter from performing the work of fabricating pipe support brackets.
Mr. Cossarini believed that the applicant was using pipe support brackets on the job which had been fabricated by Forest by a member or members Of Local 552 and that the applicant was not in violation of article 24.6. Mr. Boyle believed that Local 552 was losing the employment of at least one of its members at Forest. The difference in perceptions, and they are merely perceptions, of Mr. Cossarini and Mr. Boyle arises from Mr. Cossinari's belief that if the material is delivered to Forest in pre-cut lengths of twenty feet it would enable Mr. Salter to perform the fabrication by himself. Mr. Boyle on the other hand envisaged the material being delivered to Forest in lengths which would weigh six hundred pounds and based upon his experience it would require at least two men to fabricate the pipe support brackets.
Both men relied on their perceptions which were not based upon an empirical approach to the issue between the applicant and Local 552. Actual evidence was not to interfere with their pre-conceptions. In the opinion of the Board the approach of Mr. Boyle was highhanded and unfair. It is the responsibility of Local 552 to police all of its collective agreements and to ascertain the facts before adopting a position that one or more collective agreements had or had not been violated. Apparently, Mr. Boyle did not do this. At the time of the hearing on August 8, 1985, Mr. Salter was shortly to appear before the executive board of Local 552 for an investigation of his conduct and Local 552 was still in the process of preparing grievances arising out of the fabrication and installation of the pipe support brackets. The spirit and intent of the Labour Relations Act is to resolve differences by means of arbitration without stoppages of work. The arbitration procedure under the Act was available to Local 552. It was not used before the incident which occurred on the job on August 6, 1985. While Local 552 may use negotiation and self-help to endeavour to settle differences with the applicant it is not entitled to engage in unlawful conduct to achieve its desired ends.
On August 4, 1985, Mr. Cossarini advised Mr. Deroche who in turn advised Mr. Smith to report to the job on August 6, 1985. Three or four pipe support brackets were there to be installed together with the hanging of about two hundred feet of pipe. Mr. Cossarini had originally laid out the job and Mr. Deroche was aware of what was to be done on the job on August 6, 1985. There is a conflict in the evidence of Mr. Cossarini and Mr. Boyle. Having regard to the demeanour of the two witnesses the Board accepts the evidence of Mr. Cossarini in preference to the evidence of Mr. Boyle where there is a conflict in the evidence. The Board finds that, acting upon the advice and instructions of Mr. Boyle, Mr. Deroche and Mr. Smith on the job on August 6, 1985, refused either to install the remaining three or four pipe support brackets or to hang pipe on those pipe support brackets which had previously been installed. When Mr. Cossarini was made aware of this refusal he assigned the two employees to another location where they were given different work.
If a strike did occur on the job on August 6, 1985, it was clearly during the term of the provincial collective agreement. Section 72 provides that where a collective agreement is in operation no employee bound by the collective agreement shall strike. Section 1(1)(o) provides:
"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output;
Did Mr. Deroche and Mr. Smith engage in an unlawful strike on the job on August 6, 1985? In the opinion of the Board they did engage in an unlawful strike. Their refusal to work on the job amounted to a refusal to work in combination or in concert or in accordance with a common understanding and was also concerted activity designed to restrict or limit output. Counsel for the respondents relied on the decision of the Board in Wharton Industrial Developments Ltd., [1982] OLRB Rep. July 1105, as establishing the principle that where an employer schedules other work there has not been a cessation of work and that therefore a strike has not occurred. The factors in Wharton Industrial Developments Ltd., supra, are quite different from the facts in the instant application. In Wharton Industrial Developments Ltd., supra, the sub-contractors of their own volition decided not to schedule certain work and the Board decided that accordingly there was no cessation of work. In the instant application Mr. Cossarini, on behalf of the applicant, required work to be performed at the job and the refusal constituted a strike within the meaning of section 1 (l)(o). Such a strike was unlawful. The fact that Mr. Cossarini was prepared to make alternative work available to the two men did not nullify their earlier refusal to work at the job. The work which they were initially expected to do at the job was not done and there was no suggestion that such work was being performed on the date of the hearing of this application. An employer's flexibility in providing other work at a different location does not, having regard to the nature of the construction industry, mean that a strike did not occur. The scheduled work at the job was not performed while the applicant clearly required and continued to require such work to be performed.
Counsel for the respondents relied upon the equitable doctrine of "clean hands" in urging the Board not to issue a direction against the respondents. In the view of the Board the evidence completely failed to establish that the conduct of the applicant was tainted by unattractive conduct. Mr. Cossarini and the applicant acted on a reasonable belief that the pipe support brackets conformed with article 24.6 of the provincial collective agreement. A basis for a contrary belief was not established before the Board.
The Board has a discretion under section 135 in deciding whether to make a declaration. In Bechtel Canada Ltd., [1977] OLRB Rep. May 269, the Board stated at page 273:
Before determining the legality of this work stoppage, a preliminary issue must be addressed. Since both the strike declaration and direction available under section 123 [now section 135] are discretionary remedies, they do not issue as of right. The Board's general practice has been to refuse to exercise its discretion to issue either a declaration of an unlawful strike or a cease and desist order where the work stoppage has ended before the hearing as is the case here. (For a review of the practice and the rationale see the Acoustical Association case, [1975] OLRB Rep. July 539, Beatty Bros. (1965), 66 CLLC para. 16,049 and National Refractories (1963), 63 CLLC para. 16,276.)
The Board has consistently stated, however, that it will depart from this general practice of refusing to grant either a declaration or a direction in the face of the existence of any one or more of the following three circumstances: firstly, where the evidence establishes a past practice of unlawful strike activity, secondly, where the evidence indicates that the unlawful activity is likely to recur or thirdly where the unlawful strike upon which the application is based has implications which extent beyond the immediate parties. Thus before addressing the merits of the work stoppage which is the subject of this application, we must decide whether, even if the stoppage were found to be illegal, we would exercise our discretion to make a declaration of illegality or issue a direction in relation to it.
In the instant case the strike was still in progress on August 8, 1985, the date of the hearing. The Board is satisfied that, having regard to the roots of the problem as envisaged by Local 552, the unlawful activity was likely to continue.
In giving advice and instructions to Mr. Deroche and Mr. Smith, Mr. Boyle clearly counselled, procured, supported or encouraged an unlawful strike. Moreover, Mr. Boyle in hls capacity as business manager of Local 552 was acting within the scope of his authority on behalf of Local 552 as an officer, official or agent. In these circumstances his conduct on August 6, 1985, at the job is deemed to be an act or thing done on behalf of Local 552 by virtue of the provisions of section 99(2) of the Labour Relations Act. Accordingly, Local 552 called or authorized an unlawful strike on August 6, 1985.
For these reasons the Board made the decision and the direction on August 8, 1985.