[1987] OLRB Rep. February 179

3101-86-U Acme Building and Construction Limited, Applicant, v. The International Brotherhood of Painters and Allied Trades, Local Union No. 1671 and Arthur Verners, Respondents

BEFORE: Harry Freedman, Vice-Chairman.

APPEARANCES: David Cote, David Turner, Jorma Vainic and Ron Maricotte for the applicant; L. Steinberg and A. Verners for the respondents.

DECISION OF THE BOARD; February 23, 1987

1. The Board issued the following decision orally at the conclusion of its hearing in this matter on February 19, 1987:

This is an application under section 135 of the Labour Relations Act arising out of a conversation between the applicant's project manager, Jorma Vainio and the respondent Arthur Verner, who is the business representative and financial secretary of the respondent Local 1671.

The applicant is a general contractor that is engaged in a construction project at Kapuskasing. It is not bound by a collective agreement with the respondent union, although it is bound by collective agreements with the carpenters' union and the labourers' union.

Starting February 23, 1987 the applicant will be using a painting contractor that is not in contractual relations with the respondent union or any of its affiliated unions.

On February 10, 1987, Mr. Verner went to the applicant's job site in Kapuskasing to investigate the work that was being performed. When he was advised by Mr. Vainio that the applicant was going to be using a non-union sub-contractor to do painting work, Mr. Verner objected and indicated to Mr. Vainio that if the applicant used a non-union sub-contractor, there would be an information picket line and that he, Mr. Verner would be on it.

Mr. Verner testified that he made the statements attributed to him by the applicant's witnesses. He also testified that he did not really have any intention to set up such an information line. In the 14 years as business representative of the respondent union, he has only been involved in one information picket line.

Relief under section 135 is discretionary. In this case, the only conduct that can give rise to the relief sought are the statements of Mr. Verner on February 10, 1987. Those kinds of statements have not been made to the applicant since then and nothing more has been done to carry through with them.

The applicant not only seeks a remedy enjoining any further threats, but also wants an order enjoining picketing.

Mr. Vemer testified that he made the statements because he was angry. While I have some doubts about Mr. Verner's testimony in that regard, I am satisfied that he has not done anything since February 10, 1987 to have an information line or a picket line established at the applicant's project in Kapuskasing. Furthermore, I accept Mr. Verner's testimony given under oath that he did not have and does not now have any intention of setting up an information line or a picket line there. Therefore, I am not persuaded that there is a real or strong likelihood that picketing will occur so that the Board should exercise its discretion to grant, in effect, quia timet relief in respect of picketing. See paragraph 11 of Maitland Ready Mix Concrete Products Limited, [1980] OLRB Rep. Dec. 1751 where the Board stated at 1754:

"The application for relief is, in the Board's view, premature and may be compared to a request for an injunction quja timet before the courts. Injunctions quja timet are not granted by courts unless a plaintiff shows a strong case that the apprehended mischief will in fact arise, see Cheeseworth v. Toronto (1921), 1921 CanLII 473 (ON SCHCD), 49 O.L.R. 68 and Matthew v.Guardian Assurance Company (1919), 58 5.C.R. 47, and that the mischief, when it comes, will be very substantial, see Fletcher v. Bailey (1885), 28 Ch. D. .8....

Statements by the respondents that a picket line would be set up do not persuade the Board that an unlawful strike will occur at the site. The mere apprehension by the applicant that a picket line might be set up which in turn might lead to an unlawful strike is not sufficient, on the facts before the Board, to entitle the applicant to the granting of discretionary relief under either section 82 or section 123."

As for relief with respect to the statements made by Mr. Vemer, those isolated statements have not prompted any further conduct and there have not been any subsequent statements of a similar nature made. In my opinion, these circumstances are analagous to situations in which an applicant seeks a cease and desist order before the Board in respect of an unlawful strike when the strike is over at the time of the hearing before the Board. I am not persuaded that it is likely that Mr. Verner or the respondent union will make such statements to the applicant in the future, and there is absolutely no suggestion that there is a history of such statements being made. In these circumstances, the Board does not exercise its discretion to grant the relief requested. See Bechtel Canada Limited, [1977] OLRB Rep. May 269 at 273; Ontario Hydro, [1985] OLRB Rep. April 577.

Therefore, the Board hereby refuses to exercise its discretion under section 135 of the Act to grant any remedy. This application is hereby dismissed.