[1985] OLRB Rep. June 880

0704-85-U Horton CBI, Limited, Applicant, v. International Association of Bridge, Structural and Ornamental Ironworkers Local 759 and Bob Stoppel, Respondents

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

APPEARANCES: Thane Woodside, Jim Hasseli, Mike Dautovich and Bill Lush for the applicant; David Starkman, Bob Stoppel and Sharryn Aiken for the respondents.

DECISION OF THE BOARD; June 22. 1985

I

1This is an application under sections 92 and 135 of the Labour Relations Act. The applicant asserts that the respondents have authorized or engaged in certain picketing activity, contrary to sections 74 and 76 of the Act. The provisions of the Act to which reference will be made 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 (I) does not apply to any act done in connection with a lawful strike or lawful lock-out.

135.-(i) 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.

(3) The Board shall file in the office of the Registrar of the Supreme Court a copy of the direction made under this section, exclusive of the reasons therefor, in the prescribed form, whereupon the direction shall be entered in the same way as a judgment or order of that court and is enforceable as such.

[emphasis added]

2Because of the nature of the allegations made by the applicant and the assertion that it might suffer serious economic loss if the case were not heard quickly, the Board abridged the time for filing material, and scheduled a hearing, in Toronto, on Saturday, June 22, 1985. At the conclusion of the hearing the Board advised the parties, briefly, of its factual and legal conclusions, together with the resulting remedial order. The Board indicated that its decision could not be transcribed over the weekend, but that it would be reduced to writing and issued as soon as possible, the following week. The parties were content with that approach. The decision of the Board is set out below.

II

3The applicant, Horton CBI, Limited, is a company which engages, inter alia, in metal plate fabrication and the field erection of storage tanks and pressure vessels. The applicant is presently bound by a collective agreement with the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers Local 128 ("the Boilermakers"). It has no collective bargaining relationship or collective agreements with the respondent union. The respondent union does not represent any of the applicant's employees.

4On or about April 9, 1985, the applicant contracted with the Container Board Division of Domtar Incorporated ("Domtar") to supply labour, supervision, tools and equipment necessary to replace a "barking drum" at Domtar's pulp mill in Redrock, Ontario. The installation is to be done during the mill's vacation shutdown. The applicant is one of a number of subcontractors who are engaged in the repair or installation of equipment at the Domtar site. It is necessary to co-ordinate the applicant's activities with other subcontractors and with the work being done by Domtar's own employees. Time and timing are of the essence. Mike Dautovich, the applicant's assistant construction manager, explained that the company had only a limited "time window" of about 18 hours in which to perform its assigned tasks. This period of intense activity is scheduled to begin on Wednesday, June 26, 1985.

5The installation of the barking drum will require a crane which has to be brought on site, rigged, and held in readiness to lift the material as required. Without the services of a crane and a crane operator, the applicant would not be able to complete the work contemplated by its contract. The applicant does not have its own crane equipment, and accordingly, has entered into a contract with a subcontractor, Thunder Bay Harbour Improvements ("Thunder Bay") which will provide a crane to enable the applicant to unload and install the replacement barking drum. Thunder Bay is presently bound by the terms of a collective agreement with Local 793 of the International Union of Operating Engineers ("the Operating Engineers").

6Work at the Domtar site began on Monday, June 17, 1985. It was and remains the applicant's intention to have the work performed by its own employees, who, as noted, are members of the Boilermakers' union. Therein lies the seeds of the present problem. Robert Stoppel, an official of Local 759 of the International Association of Bridge, Structural and Ornamental Ironworkers ("the Ironworkers") claims that some of this work should be done by members of his Local union. To back up his jurisdictional claim, Stoppel established what was described as an "informational" picket line.

7The jurisdictional dispute and the picketing precipitated a flurry of phone calls between the parties and employers affected. Some of the testimony concerning what was said is obviously hearsay; however, in this regard, it is necessary to make several observations. Pursuant to section 103 of the Labour Relations Act and 15 of the Statutory Powers Procedure Act, the Board may accept and act upon hearsay evidence if, in the Board's opinion, it is reliable, and much of the testimony confirmed a pattern of events, established independently, which would have been a remarkable coincidence if the hearsay comments were not, in fact, true. Further, to the extent that the evidence bears directly or indirectly upon the words or conduct of the respondent Robert Stoppel, the Board notes that Mr. Stoppel was present throughout the hearing and had ample opportunity to refute or qualify what was attributed to him by others. Mr. Stoppel did not give evidence. In the circumstances, the Board considers it appropriate to draw the inference that his testimony, if candidly given, would have been contrary to the respondents' position.

8Mike Dautovich first learned that there was a jurisdictional dispute at the Domtar site when he received a phone call from Jack Slate, the applicant's contract supervisor. Slate told Dautovich that he [Slate] had received a telephone call from Stoppel claiming that the work assigned to the Boilermakers should have been assigned instead to the Ironworkers. Stoppel told Slate that there would be picketing and trouble if the jurisdictional dispute was not resolved in favour of the Ironworkers. The same day, Peter Stone, the engineering manager for Domtar, and Tom Davis, a project engineer, both relayed a similar concern to Bill Lush, the applicant's field foreman in Redrock. Lush was responsible for supervising field construction on the Domtar job. Davis and Stone told Lush that there was a work claim involving the Ironworkers' union and that picket lines might be established to support that claim.

9Sure enough, the following day (Wednesday, June 19th), four persons picketed both the main entrance and the construction entrance to the Domtar mill. The persons picketing carried stencilled signs which read "Horton is unfair to Ironworkers Local 759". Dautovich was told about the picketing by Stone. Lush observed the picketing directly.

10The members of the Boilermakers' union crossed the picket line and went to work as usual. The crane operator refused to do so. The crane operator told Lush that he would respect the picket line. As a result, the crane was idle for about eight hours that day, and the work which it was designated to do was not done as scheduled.

11This situation provoked a series of telephone calls between Dautovich, Stone, and officials of Thunder Bay. Stone expressed concern that a continuation of the picketing could disrupt the orderly completion of the jobs assigned to the various unionized subcontractors working on the site during the mill shutdown period. Thunder Bay undertook to find a crane operator who would be prepared to cross the picket line. Another operator was found later that day.

12Any confusion about the nature of the problem or the respondents' intentions was dispelled at about 1:35 (i.e. Wednesday, June 19th) when Stoppel himself called Dautovich. Stoppel told Dautovich that the company had made an incorrect award of work to the Boilermakers' members and that ironworkers should have been given the work. He asserted that the work was within his Local's jurisdiction, but he would allow the company to retain boilermakers and issue them temporary ironworker permits, provided the company agreed that it had made an incorrect award and that the work would be reassigned to ironworkers. Dautovich was not prepared to do so. Stoppel retorted that he "knew Horton Steel" and believed that "he would get nowhere with them". The picket lines would therefore be reinstated. He said he would make things "hot and heavy" at the mill. He said there were unemployed millwrights who also had some claim to the work in question and would be willing to help man the picket line. When Dautovich suggested that any jurisdictional dispute should be resolved in accordance with established legal and institutional procedures, Stoppel replied that "if he contacted the representatives in Toronto, by the time they got off their asses to do anything, the work would be complete". He preferred his own methods.

13The following day (Thursday, June 20, 1985) the pickets returned. They wore the same signs. This time, however, the applicant's boilermakers and the crane operator went to work as scheduled.

14The respondents have filed a jurisdictional dispute pursuant to section 91 of the Labour Relations Act claiming the work in question, however, the respondents are not prepared to undertake to refrain from picketing, or escalating the level of picketing, until their claim is resolved in accordance with the procedure established in the Labour Relations Act. The applicant, on the other hand, is concerned that its ability to meet the requirement of its commercial contract within the prescribed time frame will turn on such unpredictable and uncontrollable factors as the number of pickets in place on Wednesday, June 26, 1985 and the depth of union solidarity which the various subcontractors' employees choose to exhibit on that day. The applicant is concerned that if employees (and particularly the crane operator) refuse to cross the picket line - in effect, engaging in a sympathy strike - it may suffer serious financial consequences. Obviously, any interruption in the scheduled work flow could affect other subcontractors and Domtar as well.

III

15On the basis of the evidence before me I have no doubt that the picketing occurred in the manner described above, and that it was instituted by Mr. Stoppel on his own behalf and on behalf of the respondent union in order to put economic pressure on the company to give in to the Ironworkers' claim. It was a resort to economic pressure in circumstances where Mr. Stoppel questioned the efficacy of the procedures established under the Labour Relations Act for resolving jurisdictional disputes. Certainly there was an "informational component" to the picketing, in that the picketing was designed to advise other employees of the Ironworkers' displeasure with the applicant. But that was not its only purpose or the only intended message.

16It has long been recognized in this Province that the affiliated building trades of the construction industry can be expected to, and do, respect each others picket lines, without having to be expressly "told" to do so. That probability has been recognized both in practice and in law (see Smith Brothers Construction Co. Limited v. Jones, 1955 CanLII 152 (ON HCJ), [1955] 4 D.L.R. 255 (H.C.), International Longshoremen 's Association, Local 273 et al. v. Maritime Employers' Association et al., 78 CLLC, 14,171, and Acme Building and Construction Limited, [1984] OLRB Rep. Aug. 1037). The fact is that, regardless of the nature of the labour dispute or the details of the information conveyed by the picket signs (and here the signs themselves were rather cryptic), picketing at a construction site has a collateral purpose: to induce other employees in sympathy with the picketers to refrain from crossing the picket line and going to work, as scheduled. The message is "don't cross"~ which, in effect, usually means "engage in a sympathy strike which will put pressure on the firm with which we have a dispute".

17In this jurisdiction and in the context of the construction industry it really cannot be disputed that a concerted refusal to cross a picket line based upon sentiments of sympathy or solidarity is nevertheless a "strike" within the meaning of the Labour Relations Act (again see Maritime Employers' Association and Acme Building and Construction Limited, sup ra). Nor can it be disputed that on a construction site, a work stoppage by one trade will inevitably have spillover effects on other trades and employers working on the same site. That is why relief under section 135 of the Act (in contrast to section 92) is available to interested persons whose employees and activities may be disrupted by strike or picketing activity by employees of another subcontractor on the same site. Any residual doubts in this regard have been removed by the 1984 amendment to the Labour Relations Act which added the underlined words to section 135 set out in paragraph one above. The amendment makes it clear that affected employers can seek relief from the disruptive effects of illegal picketing activity.

18The respondents claim that even though the Ironworkers have no collective agreement or collective bargaining relationship with the applicant, there is still a labour dispute which the Ironworkers have a right to bring to the attention of persons potentially interested. The respondents claim that "informational picketing" at the location of the labour dispute is an aspect of freedom of expression protected by section 2(d) of the Canadian Charter of Rights and Freedoms. In the respondents' submission, the pickets were merely expressing an opinion on the state of relations between the applicant and the Ironworkers' union and were making a public appeal for support. The respondents argue that any restriction on picketing, purportedly based upon sections 74 or 76 of the Labour Relations Act are inconsistent with Charter guarantees and, consequently, of no force and effect. The respondents acknowledge that there can be reasonable limitations on the rights protected by section 2(d), but urge the Board to engage in a "balancing exercise" and find that, in the circumstances of this case, a restriction on picketing is not a "reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society". The respondents point out that the evidence does not disclose that the applicant will necessarily suffer damage or economic loss should the picketing be permitted to continue. The respondents assert that the Board should not engage in an exercise of "prior restraint", and that the onus lies upon the applicant to demonstrate that limits on rights guaranteed by the Charter must be reasonable.

19The submissions made by the respondents raise a variety of difficulties - not least of which is the fact that the Labour Relations Act, as a whole, represents an intrusion into the private market place and the relationship between employers and employees. It is not primarily aimed at the regulation of relations between the State and its citizens. It represents a complex balance of private interests, establishing rights which did not exist at common law and, at the same time, limiting sanctions which might otherwise be subject only to common law restrictions. This is not to deny the potential application of the Charter to the employer-employee relationship, or to diminish the potential importance of the Charter or the rights which it protects. It is simply that the Board must be sensitive not only to the appeal to ''constitutional rights', but also to the statutory and labour relations context under review. The Board must be mindful that the rights here asserted are not a limitation on State action, but a restriction on the ability of a private party to protect itself from economic pressures, nominally illegal, which may result in serious economic losses for which there is no obvious means of redress or recovery.

20The problem with the respondents' submissions is that they characterize picketing solely as a means of expression or communicating information. But, as we have already noted, in ordinary circumstances (and certainly in the circumstances of this case), the picket line is much more than that. It is not just a simple exercise of a worker's freedom of expression. In the heavily unionized context of the construction industry, it is an effective trigger to a work stoppage. The very presence of a picket line will likely induce sympathetic action, quite irrespective of the nature of the information which the pickets seek to disseminate. Picketing is not just a rational appeal to persuasion. It involves an appeal for the application of immediate economic leverage in support of the picketers' cause. It is not an invitation to debate, it is a call to action; and in cases such as the present one, such action has already interfered with the conduct of the applicant's business and may well result in an unlawful work stoppage. The fact that such unlawful strike has not yet occurred (except perhaps peripherally), does not diminish the fact that that is the purpose of the picketing. The respondents are not just advertising their jurisdictional dispute. They are attempting to put economic pressure on the applicant by encouraging employees of other employers to respect the picket lines and engage in an unlawful work stoppage. And, of course, such pressure is not only nominally illegal, but is also an effort to circumvent the procedure for resolving jurisdictional disputes, established in the Labour Relations Act.

21On the evidence before me, the Ironworkers' claim is no more than a naked demand that its members can do the work and that, therefore, they should do it here - even though there is no established collective bargaining relationship with the applicant employer. The Ironworkers' position is that it is "their work'' and that if its jurisdictional claim is not recognized, things will be "hot and heavy" for the applicant employer.

22For the purposes of this case, I am prepared to agree that if the Charter is to be applied between private parties as the respondents submit, the Board must balance the competing claims to "freedom of expression" and freedom from forms of economic pressure or coercion which are contrary to the Labour Relations Act. However, there are a number of factors and interests worthy of consideration. Among these are the applicant's interest in having the work done by its own employees in accordance with its established collective agreement with the Boilermakers' union. The Boilermakers' union is concerned that its members should be assigned available work, which they are capable of doing, on terms established in their collective agreement with the applicant. Other contractors on the site, including Thunder Bay, are concerned that their activities should not be disrupted because of the Ironworkers' claim against the applicant in which they are not involved. So is Domtar. Finally, any claim which the respondent union may have, can be pursued pursuant to section 91 of the Labour Relations Act which provides a means for resolving jurisdictional disputes. Recognition questions can be dealt with through the certification process.

23The Ironworkers' union does not deny that a jurisdictional dispute proceeding may be launched under section 91 of the Labour Relations Act. From the respondents' perspective that proceeding is too slow and may not result in an outcome to their liking. Picketing is a much more effective way of pressuring the applicant to recognize the respondent union and assign work to its members.

24Having considered the respondents' representations in the circumstances of this case, I do not think that the "Charter argument" can be accepted. Assuming, for the moment, that picketing involves an element of freedom of expression, I do not think that the Charter protects expressions which, as here, amount to a call or encouragement to engage in an unlaw­ful strike. (I make no comments on the propriety of other means of communicating the respondents' concerns.) To the extent that sections 74 or 76 of the Labour Relations Act amounts to a restriction on such expressions, it is my view that such restriction is quite jus­tifiable in accordance with the terms of the Charter. It follows, of course, that the picketing must be prohibited; however, nothing in this decision should be construed as an opinion on the merits of the respondent union's claim under section 91 of the Labour Relations Act should it seek to pursue that avenue of redress.

25Having regard to the foregoing, the Board makes the following declarations and directions:

1. The Board finds and declares that the respondent Robert Stoppel, being an officer, official or agent of the respondent union, has coun­selled, procured, encouraged and threatened an unlawful strike con­trary to section 74 of the Labour Relations Act.

2. The Board further finds and declares that Robert Stoppel, contrary to section 76(1) of the Labour Relations Act, has done acts (namely establishing a picket line) which he knew or ought to have known would, as a probable and reasonable consequence, induce persons working at the site of the Domtar Pulp Mill in Redrock, Ontario, to engage in an unlawful strike.

3. The Board directs that the said Robert Stoppel, and any other official of the respondent union having notice or knowledge of this direction to cease and desist from counselling, procuring, supporting, encour­aging or threatening an unlawful strike; and, in particular, to refrain from picketing or authorizing, establishing or maintaining a picket line in the vicinity of the Domtar Pulp Mill in Redrock, Ontario.

4. The Board further directs that the respondent Robert Stoppel and any other person having notice or knowledge of this direction cease and desist from any acts which they know or ought to know, as a prob­able and reasonable consequence, will induce other persons to engage in an unlawful strike; and, in particular, that they cease and desist picketing or authorizing, establishing, maintaining or encouraging picketing activity in the vicinity of the Domtar Pulp Mill in Redrock, Ontario.