Bird Construction Company Limited et al. v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers — C.L.C. Local 325 Etobicoke et al.

[1985] OLRB Rep. March 359

3172-84-U Bird Construction Company Limited and Mollenhauer Limited, Contractors and Engineers, Applicants, v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers — C.L.C. Local 325 Etobicoke and Larry Masiak, Richard Anthony, Andrew Post, Bradley Tripp and James Mullally, Respondents

BEFORE: R. O. MacDowell, Vice-Chairman.

APPEARANCES: Bruce Binning for the applicants, Martin Levinson, G. Greco and R. Starley for the respondents.

DECISION OF THE BOARD; March 25, 1985

1. This is an application filed under section 135 of the Labour Relations Act. It concerns certain picketing activity which is currently occurring at the Toronto premises of Carling­ O'Keefe Breweries of Canada Limited ("Caning"). The applicant employers "Bird" and "Mollenhauer" contend that this picketing is contrary to the Labour Relations Act. The provisions of the Act which may be relevant to this matter are as follows:

74. 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.

76.-(l) No person shall do any act if he 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 or an unlawful lock-out.

(2) Subsection (1) does nor apply to any act done in connection with a lawful strike or lawful lock-our.

92. Where, on the complaint of a trade union, council of trade unions, employer 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 an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do an 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, the Board may so declare and it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

135.-(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 an unlawful strike, or that employees engaged in 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, employers' organization, trade union or council of trade unions and their officers, officials, or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

117. In this section and in sections 118 to 136,

(f) "trade union" means a trade union that according to established trade union practice pertains to the construction industry.

[emphasis added]

The underlined portions of sections 92 and 135 were added in the summer of 1984 by Bill 75,

The Labour Relations Amendment Act, 1984 5.0. 1984, c.32, s.2.

2. Caning is a well-know producer of beer. It operates a large brewery on Carlingview Drive in Metropolitan Toronto. Caning has a longstanding collective bargaining relationship with the respondent "Brewery Workers Union". The Brewery Workers Union represents Caning's production, office and delivery employees.

3. Carling is currently in the process of substantially expanding the productive capacity of its brewery on Carlingview Drive. The expansion programme involves an addition and extension to the buildings currently housing the company's fermentation, bottling, brew house and power house facilities. It also involves the installation of a new high speed bottling line and an automated aluminum can line. Bruce MacDonald, Carling's industrial relations manag­er, explained that the promotion of the company's "Miller" brands has been so successful that it was simply unable to meet the market demand. It was imperative that the company increase its capacity to brew and store beer, through the expansion of its physical facilities and the introduction of more efficient and sophisticated equipment. The sooner that can be accom­plished, the sooner Carling will be able to exploit the potential market.

4. Bird and Mollenhauer are two general contractors engaged on Carling's expansion project. Both companies employ their own employees and have subcontracting arrangements with a number of specialty construction subcontractors. These construction industry employers, including the applicants, are all bound by collective agreements with various construction trade unions.

5. Carling, the "owner-client" is also acting as its own general contractor in respect of certain aspects of the work. Carling has entered into direct contractual relationships with construction subcontractors who supply services or perform work on Carling's brewery expan­sion project. Those contractors, in turn, also have contractual and collective bargaining relation­ships with various construction trade unions. There is no evidence that Carling itself has any collective bargaining relationship with any construction union. In December, 1984, after a meeting with the Ministry of Labour, Carling undertook the responsibility of being designated the "constructor" for the purposes of the Occupational Health and Safety Act. An official of Bird testified that Bird and Mollenhauen were unwilling to shoulder that responsibility when they had no direct control over the subcontractors with whom Carling had direct dealings. The ''constructor” is at the top of the legal pyramid and is under an obligation to ensure that the subcontractors on a job site comply with the legislated safety requirements and rectify any deficiencies which may arise. The ongoing construction work is being monitored by Carling's firm of architects and consulting engineers.

6. Until recently, there was construction activity going on all oven the industrial site where the production employees usually work. The construction workers use Carling's estab­lished road network to travel to their respective work locations. So do Carling's production employees. Ralph Morris, the plant engineer, testified that, in recent months, Carling became concerned about traffic congestion and safety. The roads were becoming rough and frequently congested with construction vehicles. In order to help alleviate these problems and better control parking and traffic flow, Carling decided to reopen a second gate at the north west corner of its property. It was intended that this gate would be reserved exclusively for the use of construction workers. Carling's own employees would be required to use the north east gate.

7. Mr. Morris testified that the "construction" gate reopened about September, 1984. Initially it was under the control of Bird. About two months ago, Carling's own security agency took over responsibility for controlling the passage of employees and vehicles through both of the gates. The employees and the security officers have all been instructed to adhere to the rule that the north-west gate is to be used exclusively by construction employees, and the north-east gate is reserved exclusively for Carling's production workers.

8. The evidence establishes that the scheme of separate gates has not been entirely successful — perhaps because the gates are at opposite ends of the same road network and, no doubt, there is a natural tendency (particularly in winter) for workers to want to use the most convenient gate, and park in an area close to their work station. Nevertheless, I am satisfied that, by and large, most employees do respect the established rules.

9. In recent weeks, Ontario's three major breweries — Carling, "Molson's", and "Labatt's" — have been involved in negotiations with the Brewery Workers Union with a view to concluding new collective agreements. On February 26, 1985, these three companies decided to lock out their employees. The lockout is lawful. Its purpose is to put economic pressure on the employees and force the respondent union to agree to the companies' terms.

10. The beer producers are acting in concert and presenting a common front in order to maximize the economic pressure on their production employees and minimize their own economic risk. So long as all major competitors are shut down, the union cannot play one against the other, and no company can reap a market advantage because of a competitor's labour problems. It is a kind of "employer solidarity" which is just as understandable and potentially effective as its employee counterpart.

11. On February 12, 1985, about two weeks before the lockout, Greg Greco, the president of Local 325 of the Brewery Workers Union, met with Bruce MacDonald, Carling's industrial relations manager. Greco indicated that, in the event of a strike or lockout, the company's premises would be picketed, but that the union was content that both the office employees and the operating engineers (who maintain the heating system) should freely cross the picket line. Neither the office employees nor the operating engineers are presently in a legal position to strike, and Greco made it clear that there was no intention to interfere with the services they provided. However, Greco was not prepared to make a similar concession in respect of Carling's subcontractors doing maintenance or repair on the company's existing equipment, or doing construction or installation of the company's new physical plant and equipment.

12. At about 7:30 a.m. on the first day of the lockout, union members began picketing Carling's premises. There were pickets at both gates. It is conceded that union officers have both authorized and engaged in that picketing. Construction workers have refused to cross the picket line and enter the north-west gate.

13. There can be little doubt about the purpose of the picketing or the union's motive. Greco testified that, from the union's point of view, the key issue in the labour dispute is technological change, automation, and a potential loss of jobs when the expansion programme is complete and the new equipment is "on stream". In his view, the installation of the high speed bottle line and the switch to the use of aluminum cans will seriously reduce the job opportunities available to the union's members unless the effects of these changes are met by compensating clauses in the collective agreement. The new equipment operates three times as fast as the machinery now in place, potentially allowing the company to meet production needs with far fewer employees. He makes this prediction based upon his own observation of the effects of the new equipment at other breweries, and his analysis of the experience in the American brewing industry. Bruce MacDonald disagrees with the union's pessimistic projection, but does not dispute that automation is the key issue in the dispute from the union's point of view. Nor did he deny the importance, from Carling's point of view, of getting the new production lines into operation. That is why at the bargaining table the union is insisting on a variety of job security measures (retraining, wage/work guarantees, etc.) to cushion employees from the impact of the new equipment, and that is why the union is picketing the construction gate.

14. There may have been some residual concerns about safety, but I am satisfied that a principal purpose of the picketing at the construction gate is to delay Carling's planned expansion programme and put economic pressure on Carling which hopes to bring the new productive capacity "on line" as quickly as possible in order to capture what it foresees will be a potentially lucrative market. Of course, both the process of automation and the union's concerns have been around for some time, but under our legislation, this is the only time that the union can lawfully exert economic pressure and the employer has an obligation to bargain about the job security issue (unlike the situation in the United States where there is a continuing duty to bargain and no statutory mid-contract strike prohibition). If the union cannot mobilize enough bargaining power within the legally permitted time frame, or if the issue becomes a fait accompli, the union will have "lost" and the employer will remain as unfettered as it was during the currency of the now expired collective agreement. It is against this background that one must weigh Greco's "noble gesture" of "permitting" the office workers to cross the picket line (as they may be legally obligated to do anyway). This is nothing more than a recognition of the law and the fact that their services do not matter very much in the context of this dispute. The services provided by the construction workers do matter, from a number of perspectives. The interruption of the expansion programme ties up capital and imposes costs on Carling not unlike those arising from its idle plant and equipment. It interferes with Carling's existing marketing strategy whereby it hopes to serve and expand its customer base. And it increases the union's leverage on the very issue which is the cause of concern at the bargaining table.

15. I am also satisfied (despite some equivocation on his part) that Greco knew full well that construction workers were unlikely to cross the picket line. He testified, in-chief, that there was no prearrangement with the building trades unions, but on cross-examination he conceded that, as a matter of trade union solidarity, he did not cross picket lines and he expected the construction workers would hold the same view. They did. The effect of the picket line was to bring to a halt all construction, renovation and equipment installation associated with Carling's expansion programme.

1 6. On the other hand, before one dwells too deeply on the union's motivation, or the effect of picketing at the Carling premises, it must be remembered that picketing is always designed to put pressure on the struck employer in one way or another; and primary picketing, at the employees' work place is always intended to dissuade persons (delivery men, suppliers, customers, replacement workers, and so on) from entering the struck premises for business purposes. Economic pressure is the raison d'etre of any strike or lockout. The disruption of the employer's business is an ingredient in the union's bargaining power as well as the catalyst for settlement. And quite apart from any question of picketing, entirely "neutral" suppliers, distributors, customers and employees will often be detrimentally affected by a work stoppage simply because they are accustomed to doing business with the struck employer and may have difficulty in continuing to do so. Their operations are functionally related in an economic sense, and they may suffer economically, even though, unlike the present case, their business premises or activities are unlikely to be geographically contiguous with those of the struck employer.

17. It must also be remembered that the applicants' presence on the Carling site is more than a mere accident of geography. They are supplying useful services to Carling, the immediate party to the labour dispute, at the very work place of the locked out employees. It is also a little difficult to say that those engaged in installing the equipment that the dispute is about, are wholly unconcerned. Both the applicants and Carling derive a distinct economic advantage from continuing their dealings, and in the case of Carling, a collective bargaining advantage too. The farther the automation progresses, the less likely the union will be able to influence its implementation. Both the applicants and Carling will continue to enjoy that advantage if the picketing is prohibited. Indeed, to the extent that the automation proceeds unhindered, the activities of the construction workers may be contributing to a much more tangible and serious loss of long-term, permanent work opportunities than would be the case if Carling chose to continue production through the use of management or replacement employees. That is certainly Greco's belief. I mention this because unless there is a qualitative and legally significant difference between the construction services (labour and materials) supplied by the applicants and their subcontractors, and the services supplied by, for example, a cartage company that chose to make deliveries for an employer during a lawful work stoppage, the cartage company could also claim to be a "neutral" immune from primary picketing of the employees' work site, so long as there was a separate delivery gate. One might also ask whether the functions performed by the applicants and their subcontractors at the site of the primary dispute are analytically different from those provided for Carling by outside contractors engaged to perform painting, electrical or mechanical repair, or to work on an annual overhaul of existing equipment. Or are these subcontractors also immune from picketing, provided the company establishes a separate "maintenance and repair" entrance? Counsel for the respondent put it this way: why shouldn't the union be entitled to give its message to anyone visiting the employees' work place for the purpose of doing business with Carling? In the circumstances of this case, what is so special about the applicants, that they should be immune from exposure to picketing at the employees own work place?

18. It is not disputed that the construction workers have declined to cross the picket line, and there is no doubt that in this jurisdiction, a concerted refusal to cross a picket line constitutes a strike. Since the construction workers in this case are bound by subsisting collective agree­ments, that strike is necessarily unlawful. The construction employers, should they so wish, could seek from this Board a variety of remedies, vis-a-vis their own employees and unions. Those remedies include damages and/or a cease and desist direction to prevent the continuation of the unlawful strike. Such cease and desist directions have been granted — most recently by the present Vice-Chairman, when T.T.C. drivers refused to cross the picket lines of striking workers at various Eaton's stores in Toronto. (See Toronto Transit Commission [1984] OLRB Rep. Dec. 1781.) The question here, however, is not whether the construction contractors (and perhaps Carling as owner-client or in its capacity as general contractor) can require construc­tion employees to go to work despite the picket line. The issue is whether the construction contractors can prevent the brewery workers from peacefully picketing parts of their own work site.

19. Before considering the propriety of the picketing per se, it is necessary to deal with two subsidiary "technical" arguments raised by counsel.

20. This application was brought under section 135 of the Act. Section 1 35 appears in the construction industry portion of the Statute. It pertains only to the construction industry. Its industrial equivalent is section 92, and it will be observed that section 1 35 is somewhat broader than section 92. Under section 135 relief is available to any "interested person". There is no equivalent wording in section 92. The difference is rooted in the realities of the construction industry.

21. On a construction site the work of a number of employers and their employees must be co-ordinated and integrated. Any unlawful strike will inevitably have "spill-over" effects on other employers — even if their own employees are not directly involved. Section 135 permits such "interested persons" (a general contractor, another subcontractor, or perhaps an owner-client) to seek relief against the employees of some other employer when an unlawful strike impinges on their operations.

22. But in the construction industry portion of the Act, the term "trade union" has a very specific meaning. It refers only to unions that according to established trade union practice pertain to the construction industry (see section 117(f)). The Brewery Workers Union does not meet that test. It is not a construction industry trade union. Accordingly, the applicants cannot seek relief under 135 against the Brewery Workers Union or its officials. It would appear, however, that such relief can be sought against "persons" who are picketing (including trade union officials in their personal capacity) and thereby causing an unlawful strike; moreover, as an employer, the applicant could seek similar relief against the picketers under section 92. The fact that section 135 does not apply to a non-construction union would not prevent the applicants from obtaining an order, pursuant to section 76 restricting "persons" from picketing, and that, of course, is their principal objective. Counsel for the union conceded that I could and should treat this application as being made simultaneously under both sections 92 and 135 for the purpose of dealing with the merits of the dispute.

23. The other argument involves the ambit of sections 92 and 135 following the recent amendment to those sections. The applicants submit that the amendments were intended to give the Board a wide ranging jurisdiction and discretion to regulate any picketing, even entirely lawful and peaceful primary picketing, where it leads to an unlawful strike by some employees of some employer. It is said, for example, that if the unionized truck drivers employed by a cartage company refused to cross the brewery workers' picket line, the Board would have jurisdiction, not just in respect of the strike, but also to limit the picketing. Of course, it would be a matter of discretion whether the Board would choose to do so, but the applicants argue that the Board would have that option. The applicants assert that where a person is doing something which precipitates an unlawful strike, the Board's jurisdiction is much wider than that of the common law courts. Counsel for the union argues that the Legislature did not intend to extend the Board's substantive authority to restrict lawful primary picketing, and he questions whether the Legislature could properly confer upon the Board a broader jurisdiction than the superior courts. In counsel's submission, the powers asserted here extend well beyond anything contemplated by the Supreme Court of Canada in the Tomko case (see Alex Tomko v. Labour Relations Board of Nova Scotia et at. 76 CLLC ¶ 14,005), and he points out that the Board's authority is, in any event, circumscribed by section 76(2) of the Act.

24. It appears to me that the purpose of the statutory amendment was much more limited than the applicants suggest: it was to ensure that a particular cause of industrial conflict —picketing — could be channelled through the expedited procedures under sections 92 or 135 rather than the more cumbersome route under section 89 of the Act. That question was very much in doubt as sections 92 and 135 were formerly worded, because the language of those sections mirrored the language of sections 72 and 74, but did not "pick up" the language of section 76. If expedition is important in dealing with situations of industrial conflict (where the Board typically schedules a hearing within 24 to 48 hours), it is sensible that the Board should be able to deal with the cause of the strike as well as the strike itself. There is no obvious policy reason why the Board should be able to move quickly to deal with a union official who procures an unlawful strike but not a "person" who does the same thing; nor that the Board can deal with the threat of a strike, but not the threat to picket which, in many contexts, will inevitably lead to a strike. It seems to me that the effect of the amendment was more procedural than substantive; but even if I am wrong, and the regulation of picketing is treated solely as an exercise of discretion, section 76(2) cannot be ignored. Whether, as a limitation on discretion or jurisdiction, 76(2) is a clear expression of legislative policy which was not altered by the recent amendments to sections 92 and 135.

25. By its terms, section 76(1) prohibits the activities of individuals who cause an unlawful strike. But section 76(2) provides that the very same activities when done "in connection with a lawful strike or lockout" are not prohibited. In my view, it follows, that, prima facie at least, such activities should not be restrained. Insofar as section 74 is concerned, I adopt the approach enunciated by former Chairman G. W. Adams, Q.C. writing for the majority in Consolidated-Bath urst Packaging Limited, [1982] OLRB Rep. Sept. 1274 at paragraph 22:

22. Section 74 and 92 must be interpreted in the context of the other provisions of the statute and of industrial relations practices. Similarly, the Board's discretion under section 92 must be exercised in the light of these same considerations. It is from this perspective that the Board has said that section 74 must be read and applied with due regard to the legislative policy expressed in section 76. See Canteen of Canada Limited, [1978] OLRB Rep. Mar. 207. Picketing is a traditional method employed by workers to publicize their employment disputes and to attract support. If section 74 was applied literally by this Board, picketing at their workplace by employees lawfully on strike would be restrained if honoured by other employees of the struck employer or by the employees of suppliers providing goods and services to the struck location. Section 76(1) is aimed more broadly and directly at picketing in that it applies to "persons" as opposed to trade union officials and requires only the finding that persons will engage in an unlawful strike as the probable and reasonable consequence of the picketing and not than an unlawful strike has occurred. However, by section 76(2) the Legislature has made it clear that it does not intend to restrain picketing done "in connection with a lawful strike". In other words, accommoda­tion is made for the traditional exercise of picketing conduct. This Board has therefore read section 74 in light of section 76(2) and declined to restrain, under either section 92 or I 35, the involvement of union officials in picketing properly associated with a lawful strike. This case, like Sarnia Construction Association, raises the issue of the scope of picketing envisaged and permitted under the Act. Is this picketing in connection with a lawful strike within the meaning of the Act?

Certainly it would be an odd result if picketing causing an unlawful strike by the employees of a second employer could be attacked if the picketers were union officials but not if the picketers were rank and file union members. (This possible anomaly could be resolved as the Board has done in Consolidated-Bathurst or by a reading of section 74, and section 76, which would confine the former section to actions by union officials vis-a-vis their own members and over whom they might be expected to have some influence — in effect reading the second part of section 74 to apply to the same "target group" as the opening words of the section.) The question then, is whether the picketing activity, which is the subject of this application and which has induced other employees to engage in an unlawful strike, falls within the saving provision of section 76(2).

26. It might be said that the issue in this case involves a simple interpretation of the words "in connection with" — and in a sense, this is so. But, of course, the underlying policy issue is much more difficult than that. The "simple question of interpretation" necessarily involves a recognition of the competing interests in issue.

27. When read as a whole, a principal theme of the Labour Relations Act is to confine and limit the exercise of economic pressure to specifically prescribed time periods. The sense of section 76 is that labour disputes should not be allowed to expand so as to enmesh disinterested third parties who might become the medium by which secondary pressure is exerted on the struck employer. But by the same token, the law envisages that a striking union is entitled to bring the employer's operations to a standstill even when the application of that pressure adversely affects persons with whom the employer does business, and notwithstanding the fact that that party is not directly involved in the dispute. Striking employees are entitled to exert economic pressure which is economically damaging and disruptive. The law also recognizes the right of employees to picket at their ordinary place of work. These policy dilemmas and potentially competing considerations arise when the Board is called upon to determine the meaning of the words "in connection with" found in section 76(2) of the Act. For, like consanguinity, "connection" is a matter of degree. So is industrial relations neutrality.

28. These problems of interpretation are compounded in the circumstances of this case where there is a primary employer, Carling, with which the union has a legitimate dispute, and there are a number of other employers, the construction contractors, with which the union has no direct dispute, but who are economically connected with the primary employer in a contractual and economically advantageous relationship. This is not a case like Consolidated-Bathurst, supra, where a geographically remote and neutral competitor sought, without prearrangement, to capitalize on the woes of the struck employer, and service the needs of the struck employer's usual customers. The construction contractors are not simply providing a service to Carling beneficial to themselves, but are obviously providing services directly advantageous to Carling's short-term marketing objectives and immediate collective bargaining interests. And Carling, is not just a passive owner-client. It has chosen to act as its own general contractor, and is a direct party to the labour dispute.

29. Of course, cases such as the present one are not entirely novel. The same problems have frequently arisen in other jurisdictions where courts and labour boards have sought to grapple with the same competing policy concerns. Indeed, there is a rich and varied jurispru­dence on the issue of common situs picketing, as well as a considerable body of scholarly comment. [See, for example: R.M. Dereshinksy, A.D. Berkowitz, P.A. Miscima editors, The NLRB and Secondary Boycotts (1981) University of Pennsylvania (Industrial Research Unit) Labour Relations and Public Policy Series No. 4; R.M. Brown "Picketing: Canadian Courts and the Labour Relations Board of British Columbia" (1981) 31 University of Toronto Law Journal 153; D. M. Beatty, Secondary Boycotts: a Functional Analysis (1974) 52 Canadian Bar Review 388; J.A. Manwaring, Secondary Picketing [1982] 20 Osgoode Hall Law Journal. See also the contrasting views expressed by the various Vice-Chairmen of the B.C. Labour Board in Dillingham Corp. (Canada) Ltd. [1975] 1 Can. LRBR 129)]. One American commen­tator was prompted to write "common situs picketing is one of the most complex areas of secondary boycott law" and in Brotherhood of Railway Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, the court observed:

No cosmic principles announce the existence of secondary conduct, condemn it as evil or delimit its boundaries. These tasks were first undertaken by Judges, intermixing metaphys­ics with their notions of social and economic policy. And the common law of labour relations has created no concept more illusive than that of "secondary conduct"; it has drawn no lines more arbitrary, tenuous and shifting than those separating "primary" from "second­ary activities.

30. Some of this jurisprudence supports the applicants' position in whole or in part. Some supports the respondents' position. Some merely points to the factors which must be elicited in evidence in order to trigger one or another of the purported positive "tests" for "essentially secondary" activity. However, I have expressly refrained from referring to any of this jurispru­dence. None of these cases were referred to in argument — in large measure, no doubt, because of the speed with which this case was brought on — and one must recognize that the American and British Columbia experience arises in a different statutory context and regulatory environ­ment. Moreover, the decisions are not entirely consistent with each other, nor within either jurisdiction are the decisions obviously consistent over time. The evolution of the American experience is particularly striking. Common situs picketing was initially totally unregulated, then substantially proscribed, then permitted in accordance with the parameters enunciated by the United States Supreme Court in Local 761, International Union of Electrical Workers (General Electric) (1961) 366 US 667. (c.f. the views expressed by the B.C. Board in Dillingham, supra, and in a somewhat similar case: M.J.D. Construction Ltd., [1981] 1 Can. L.R.B.R. 492.)

31. I neither adopt nor reject the propositions or reasoning adopted in these cases from other jurisdictions. Rather, I prefer to leave these principles, tests, and approaches to a case, circumstances, and time, when they can be thoroughly argued. For this case, it is sufficient to consider only the decision of this Board in Sarnia Construction Association, [1982] OLRB Rep. June 922, since that is the case upon which the applicants primarily rely. When the situation there is compared with the circumstances in the instant case, it will be seen that there are some similarities, but also many real differences. The facts of Sarnia Construction Associa­tion are set out below.

32. In the spring of 1982, the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the UA") was engaged in collective bargaining on a province-wide basis on behalf of its employee members working in the industrial, commercial and institutional (ICI) sector of the construction industry. Those negotiations were conducted in accordance with the special legislative provisions applicable to ICI construction, which require province-wide bargaining by trade through designated employee and employer bargaining agencies. The immediate dispute was between the UA and the local mechanical subcontractors. There was no dispute with the general contractors, the owner-clients or the other trade subcontractors. When the dispute reached an impasse, the UA called a lawful strike and one of its locals in Sarnia began picketing all of the sites where its members had been working prior to the strike. As a result, other craft employees refused to report to work as they were normally scheduled to do. However, the UA locals in Toronto and Hamilton (representing about half of the total membership engaged in the strike) were not picketing construction sites in their area because the practice there was that a project would not be picketed by the striking trade unless the work ordinarily performed by the strikers was being done by someone else. Thus, so long as the work opportunities of the strikers were being preserved, no picketing would take place — an approach which the Board noted "balances the interest of striking employees and others working on the same sites and has made an important contribution to labour relations stability in the area

33. In Sarnia, however, picketing was disrupting the work of other subcontractors, and the affected employers and employer associations sought a direction from the Board restricting the picketing. The Board granted the order subject to the proviso that: it would not apply to a construction project until one entrance to the project was established for strikers and another for the other employees; it would not apply to a construction project on which work ordinarily performed by strikers was being done; and it would not apply to a construction project where a UA official was denied access for the purpose of determining whether struck work was being performed. The Board's reasoning is set out in a long passage to which I might usefully refer:

9. Sections 74 and 76 do deal with the concept of picketing but do not mention it specifically. See Laskin, The Labour Relations Amendment Act, 1960 (1961-62), 14 U.T.L.J. 116 at p.120. It is well recognized in this province that a picket line can cause an unlawful strike within the meaning of the Act. See Nelson Crushed Stone, [1977] OLRB Rep. Nov. 713. See also Local 273, International Longshoremen's Ass'n v. Maritime Employers' Ass'n, 1978 CanLII 158 (SCC), 1979] 1 S.C.R. 120 and Note, Whether Honouring Picket Lines Constitutes a 'Strike" (1979), II Ottawa Law Review 771. There is no argument or evidence before us that the activity of those employees who recognized the respondent's picket lines was anything other than concerted or based on a common understanding within the meaning of the legislation. We are therefore prepared to find that the actions of these craft employees constitute an unlawful strike within the meaning of the Act in that the procedural conditions precedent to calling a timely and otherwise lawful province-wide strike under the statute had not been complied with prior to the work refusals in question. It goes without saying that this finding is only for the purpose of this application. The application was not brought against such employees and there is therefore no need to decide whether our discretion under section 135 ought to be exercised with respect to them having regard to all of the industrial relations circumstances. See Canadian Elevator Manufacturers, [1975] OLRB Rep. Nov. 868 at para. 15. This then raises the question of whether the respondent can rely upon section 76(2) by arguing that the picket lines are in connection with a lawful strike and therefore protected.

10. We are satisfied that sections 74 and 76 are designed to deal with, among other things, picketing aimed at employers and employees wholly unconnected with a lawful strike. On the other hand, subsection 2 of 76 is aimed at permitting, among other things, picketing arising out of and related to a lawful strike. Some integration and melding of purpose is therefore required in applying these various sections. Industrial relations experience has proven that neither purpose can be pursued to the exclusion of the other particularly in light of customs, practices and psychology surrounding the activity of picketing. Subsection 2 clearly protects, for example, picketing at a single employer location such as a plant or manufacturing setting where certain employees of that employer are on strike and picketing is aimed at fellow employees, suppliers, customers and others providing services to the struck enterprise. The Board has gone even further holding that picketing by employees on a lawful strike is permissible at locations of their employer other than the location at which they arc employed. See Canteen of Canada Limited, supra, and George Wimpey (Canada) Limited, supra. Whether or not this approach has been too sweeping in its terms we do not need to decide on the facts before us. The causes for picketing are almost infinite in variety as is the commercial activity which attracts picketing. According­ly, broad general pronouncements are not very appropriate. See, for example, Local 761, I.UE. v. N.L.R.B. (1961), 48 LRRM 2210; Sailors’ Union of the Pacific (Moore Drydock Co.) (1950), 27 LRRM 1109; and Beatty, Secondary Boycotts: A Functional Analysis (1974), 52 Can. Bar Rev. 388. The transfer of struck work from one location to another may present compelling reasons for expansive picketing whereas the picketing of another location involved in a totally different activity might have to stand or fall on the rationale that employees are entitled to picket an employer's entire economic domain. See Williams v. Aristocratic Restaurants Ltd., 1951 CanLII 24 (SCC), [1951] S.C.R. 762; Brown, Picketing: Canadian Courts and The Labour Relations Board of British Columbia (1981), 31 U.T.L.J. 153. On the other hand, there can be little doubt that direct employee picketing of a geographically removed secondary employer's premises is not protected by section 76(2) subject possibly to considerations of a roving primary situs or ally considerations. See Wescraft Manufac­turing Ltd., [1975] 2 Can. LRBR 324 and Paterson, Union Secondary Conduct: A Comparative Study of the American and Ontario Positions (1973), 8 IJ.B.C. Law Rev. 77 at 81. While it may be that a clearly secondary and uninvolved employer can come before this Board for a direction to require his employees to cross the picket lines, such a remedy is not always entirely adequate particularly in relation to suppliers and others and we see little justtfication for placing the employees of a secondary employer in the dilemma of choosing between their loyalty to the labour movement and their legal obligations. Section 76 was designed to remove the source of the problem, i.e. employee directed secondary picketing. See Arthurs, Labour Law-Secondary Picketing-Per Se Illegality-Public Policy (1963), 41 Can. Bar Rev. 573 at 584. It is only since the expansion of the Board's remedial authority that the problem has become one falling within the Board's responsibility. In this respect, we think the reliance on Canteen of Canada Ltd. in Ford Motor Co. of Canada Ltd. v. Browning (1978), 1978 CanLII 2179 (ON HCJ), 86 D.L.R. (3d) 579 at 581 was understandable but not warranted. Accordingly, Canteen of Canada must be read in light of the instant decision.

11. Moreover, in the context of province-wide bargaining in the construction industry we are reluctant to hold that contractors working on a common construction site but otherwise unrelated to a dispute involving another trade also located there lose the protection provided for by sections 74 and 76(1). Nor, with the advent of province-wide bargaining, do we accept that section 76(2) permits unrestricted picketing directed at employees of employers unconnected with the labour relations dispute other than by geography provid­ed that separate entrances can be established for such employees and provided further that the work of the striking trade or trades is not being performed. In embarking in this direction the Board must be sensitive to the custom and practices of trade unions and to the psychology permeating labour relations conflict. However, we see little justification for unrestricted common sit us picketing in province-wide bargaining where the work of the striking employees is not being performed and the employers adversely affected are not connected with the negotiations. Such employers are not party to the negotiations and can have no real control on bargaining postures. Picketing directed at such employees and employers is in every sense secondary and not connected with a lawful strike. Indeed, we note that Hamilton and Toronto locals do not see a need to picket other craft employees even of multi-trade contractors unless their work is being performed. Thus, in the circum­stances of this case, and where the picketing, either physically or visually, was not limited to single trade mechanical contractors and the common employer multi-trade contractors, we find and declare that the officers of the respondent trade union intended to cause an unlawful strike of trades employees employed by employers who are not part of the mechanical trades negotiations and that, to the extend that the picketing is directed at and interfering with such employees, the picketing cannot be said to be in connection with a lawful strike. However, on the very limited facts before us, we are not prepared to say that the multi-trade contractors involved in bargaining with the employee bargaining agency of the respondent local may also seek protection under section 74 and 76(l~. While there may be additional detail and argument on how the construction industry is different than a normal industrial setting where various employee groups of a single employer are employed in proximity to each other and therefore properly subjected to picketing, we are not prepared to distinguish the construction industry in this respect at this time. This case should not be taken as a signal to parties outside the ambit of province-wide construction industry negotiations to begin establishing reserved gates in an effort to insulate them­selves from primary picketing. This decision is very much centered on the needs and practices of a particular segment of the construction industry.

[emphasis added]

34. In Sarnia Construction Association, the strike was not directed against either a general contractor or the owner-client of the site. The picketing was directed at other specialty subcontractors who were wholly unconcerned with the dispute, did not, by their actions contribute to the economic strength or bargaining position of the struck employers, and were in fact on the site only by accident of time and geography. Their activities did not affect the work opportunities of the striking workers, nor obviously assist the struck employers either economically or in their tactical ability to resist the strikers' demands. The work of the strikers remained undone, to be completed when the dispute was over. The purpose of picketing these neutrals was to put pressure on them and perhaps the general contractors to encourage the struck mechanical subcontractors to make concessions. It was a form of pressure which the Board considered "secondary" or unconnected with the direct dispute. However, the Board was careful to limit its opinion to the unique facts of the case and circumstances of the construction industry, and even reserved judgment on whether a multi-trade contractor (i.e. a firm with contractual relationships with various trade unions) could be picketed by one of those unions, thereby inducing the others to respect the picket line and engage in a work stoppage. The Board was not prepared to extend its analysis to a manufacturing setting where it was recognized that otherwise lawful primary picketing may be aimed at: "fellow employees, suppliers, customers, and others providing services to the struck enterprise". The Board was not prepared to qualify or undercut the general proposition (and understanding in this province) that, prima facie, at least, striking workers are entitled to picket the premises of their employer.

35. In the instant case the situation is quite different from that in Sarnia Construction Association even though the issue before the Board is the same: can the impugned picketing activity properly be said to be "in connection with" the lawful lockout currently imposed by Carling on the members of Local 325 of the Brewery Workers Union? I must conclude that it is. Indeed, I do not see how I could reach any other conclusion if the words "in connection with" are to be given their ordinary meaning. To adopt the applicants' submission that the picketing here is not in connection with the lockout, I would have to totally ignore the facts.

36. The picketing here would not occur at all were it not for the existence of a lawful strike or lockout. The picketing is occurring at the locked out employees' own work site, not some geographically remote location of a neutral wholly unconcerned third party. All of the activities interfered with are of direct and immediate business benefit to Carling, and are being performed on its premises and for its benefit at the same time that Carling has locked out its own employees. In Sarnia Construction Association it was difficult to identify any benefit the struck contractors were deriving from the continuation of work by the "neutral" contractors, but that is certainly not the case here. On the face of it, Carling would appear to be as directly affected by a delay in the preparation of a profit-making addition as it is by the cessation of the production process. In both instances the loss suffered relates to the typing up of a capital investment and the prospective loss of custom. Why should one be subject to picketing and not the other when both are occurring at the employees' immediate work place? I find it difficult to distinguish the construction services here provided to Carling by the applicants, and the services supplied by suppliers or others who may have occasion to come to the location of the work stoppage for purpose of doing business. These factors, in themselves, might be sufficient to warrant a refusal by this Board to interfere with the picketing. But those are certainly not the only facts in this case which would support that conclusion.

37. Carling is not a passive owner-client, but is acting as its own general contractor in respect of at least certain phases of the construction programme, with its own direct relationship with construction subcontractors, and, since December 1984, its own responsibility for the maintenance of safety standards and the rectification of safety problems arising from the construction work. The construction workers (including those employed by Carling's own direct subcontractors) are performing services for Carling at Carling's work site which are directly related not only to the issues raised in this particular strike, but also to the parties relative bargaining positions and the ability of Carling to meet its projected production and market requirements. In locking out the employees, Carling is denying its workers present work opportunities as it is lawfully entitled to do, but in proceeding with its automation programme Carling is also limiting its employees' ability to respond to that programme in bargaining, and may well be effectively influencing its employees' future work opportunities. One of the purposes of the picketing, and perhaps the main purpose of picketing the construction gate, is to interrupt a process which the union reasonably believes will substantially reduce the work opportunities available at the Carling plant. This is not a case like Sarnia Construction Association where the activities of the so-called neutral subcontractors do not bear upon the work opportunities of the struck employer or its immediate advantage in resisting the union's demands in the strike. As I have already noted, long-term job security is what the dispute is all about. In all of these circumstances, I do not see how this Board can sensibly say that the picketing is not "in connection with" the lockout, even though the picketing at the construction gate may well cause the employees of the construction contractors to breach their own legal obligation to work and induce them to engage in an unlawful work stoppage.

38. For the foregoing reasons, the Board is not persuaded that it should issue a direction prohibiting picketing at what the applicants describe as Carling's construction gate. It goes without saying that nothing in this decision should be construed as foreclosing any rights or remedies which Carling or the construction contractors may have in respect of any unlawful work stoppage, or any remedies in respect of the picketing which may be available in other forums. Nor should this decision be read as necessarily foreclosing any regulation of picketing at a common industrial work site. Whether as a matter of jurisdiction or discretion, I am simply not persuaded that, in the circumstances of this case, the prohibition sought by the applicants should be granted.