Ontario Labour Relations Board
[1988] OLRB Rep. June 632
0616-88-U Sutherland-Schultz Limited, Applicant v. United Brotherhood of Carpenters and Joiners of America, Local 785 and Karl Ball; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Al Steffler, Jim Hilker, Ted Benedict, Ron Hallman, Gary Arnott and Keith Acton; International Brotherhood of Electrical Workers, Local 804 Wayne Lehman, Walter Schlueter, David Worton and Peter Weber; International Union of Operating Engineers, Local 793 and Ron Hunt, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair.
APPEARANCES: T. J. Billo, B. J. Houston and Robert Williams for the applicant; Douglas J. Wray and Karl Ball for Carpenters, Local 785 and Karl Ball; no one appearing for the other respondents.
DECISION OF THE BOARD; June 10, 1988
This application for a direction under section 135 of the Labour Relations Act was heard on June 10, 1988. After hearing the evidence and representations of the parties, the Board orally dismissed the application. The Board's written reasons, which are an edited and somewhat expanded version of the oral reasons given at the hearing, follow.
At the outset of the hearing, the applicant advised the Board that it and the respondents, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Al Steffler, Jim Hilker, Ted Benedict, Ron Hallman, Gary Arnott and Keith Acton and International Brotherhood of Electrical Workers, Local 804, Wayne Lehman, Walter Schlueter, David Worton and Peter Weber, and International Union of Operating Engineers, Local 793 and Ron Hunt had agreed that the application would be adjourned sine die insofar as it concerned those respondents. Upon the Board expressing some doubt with respect to whether it was possible or appropriate to bifurcate the application in such a manner, the applicant sought and was granted leave to withdraw the application as against those respondents, without prejudice to its right to bring a new application against them.
There is no real dispute between the parties with respect to the facts relevant to this application. The applicant is the general contractor on an industrial, commercial and institutional ("ICI") sector construction project at the Waterloo Sewage Treatment Plant. The project, which has a mid-October 1988 completion date, involves a major expansion of the plant and repair to the existing facilities. The total value of the applicant's contract is approximately $9.2 million. The applicant has subcontracted some of the work to other companies. There are a number of mechanical and civil trades involved in the work being done.
One of the subcontractors on the site is McCall Contractors Incorporated ("McCall"). The contract between the applicant and McCall calls for McCall to perform certain concrete formwork as stipulated in the contract. Not all the formwork on the project was subcontracted to McCall.
McCall has a collective bargaining relationship with the respondent United Brotherhood of Carpenters and Joiners of America, Local 785 ("Local 785") through the province-wide collective bargaining scheme established by the Labour Relations Act for the ICI sector of the construction industry in Ontario.
McCall began its work on the project in mid-September 1987 and worked continuously on the site until on or about May 24, 1988 at which time the affiliated bargaining agents of the designated employee bargaining agency for carpenters and carpenters' apprentices employed in the ICI sector began a lawful strike. McCall stopped work immediately although its trailers and some other equipment remained, at the time of the hearing, on the site. None of the work which the applicant subcontracted to McCall was done between May 23 and June 2, 1988.
At the time of the work stoppage, McCall was already behind the schedule established, in its contract, for the formwork it was doing. In fact, its work should have been finished but was only seventy-five percent complete. After the stoppage, the applicant quickly became concerned about the impact that it would have on the progress of the project and, consequentially, on its contractual obligations to the owner (which is the Regional Municipality of Waterloo). It attempted but was unable to persuade Local 785 to supply carpenters (to McCall or itself) for the purposes of completing certain of McCall's work, which amounted to approximately five percent of the subcontract, the total value of which is approximately $995,000. In that respect, I note that, I did not accept the applicant's suggestion that the work stoppage created by the carpenters strike created an "emergency" situation, within the true meaning of that term in the labour relations context.
In response to the situation, the applicant exercised what it viewed as its rights under the subcontract to, in effect, take that work, and only that work, away from McCall and subcontracted it to a non-union contractor, Laverty Equipment Supply ("Laverty"). Laverty began doing that work, using some of the equipment McCall had left behind on the site, on June 3, 1988.
Prior to June 3, 1988, Local 785 had not picketed the job site. Upon learning that employees of Laverty were doing the work that its members had been performing prior to the strike, Local 785 established a picket line across the sole access road to the project at approximately 2:30 p.m. the same day. That picketing continued, except on June 4, 1988, and was ongoing at the time of the hearing.
The unionized construction employees on the site, including pipefitters, operating engineers, electricians, and millwrights have honoured the picket line and refused to work, although it does appear that the applicant managed to arrange for some pipefitting, electrical, and operating engineer work to be done on June 9 and 10, 1988. The applicant has also experienced some difficulties with respect to the delivery of concrete as a result of the picket line which the truck drivers, members of the Teamsters union, are refusing to cross.
Sections 1(1)(o) and 135(1) of the Act provide that:
1.-(1) In this Act,
(o) "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;
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.
Of the decisions cited by counsel in argument, Sarnia Construction Association, [1982] OLRB Rep. June 922; Consolidated Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274 and Bird Construction Company Limited, [1985] OLRB Rep. March 359 were of greatest assistance. In that regard, I note that of the cases cited by the applicant, Horton CBI Limited, [1985] OLRB Rep. June 880 dealt with a situation where a trade union which had no collective bargaining rights or relationship with the applicant employer and did not represent any employees on the job site, establish a picket line because it claimed that certain work being done by members of the Boilermakers' union was work within its trade jurisdiction, and Acme Building and Construction Limited, [1984] OLRB Rep. Aug. 1037 was a "recognition picket" situation. Accordingly, those decisions had little application to the issues in dispute in this case.
It is well established that a picket line can cause an unlawful strike within the meaning of the Labour Relations Act. Whether or not those unionized employees (other than carpenters) who have refused to cross Local 785's picket line have acted unlawfully was not an issue in this application subsequent to the withdrawal thereof as against all respondents other than Local 785 and Karl Ball. However, the evidence in this case does not suggest other than that the refusal of such employees to cross the picket line was other than concerted or based on a common understanding. Consequently, for the purpose of this application, I found that they were engaged in an unlawful strike.
There is no doubt that Local 785 established its picket line in order to stop the performance of what it considered to be its work. It also knew, or ought to have known, that other unionized employees were likely to refuse to cross the picket line arid thereby engage in an unlawful strike, which is what happened. However, does the effect that Local 785's picket line had make it unlawful?
In Sarnia Construction Association, supra, the Board observed, at paragraphs 8 to 11:
However, the concept of picketing is in many ways regulated by the more general provisions contained in sections 74 and 76 of the Labour Relations Act and they must be interpreted with due sensitivity to the reality of the province-wide single trade bargaining created by the statute. We also accept that section 74 must be read in light of and subject to section 76 and the saving provision in that section, i.e. subsection 2. See Canteen of Canada L/d., supra, paragraph 25. viewing this application under section 135 against these sections, we observe that it was not suggested or argued before us that the application, having been brought against a trade union and not against particular officers, officials or agents of the trade union, was technically unfounded. (See the respondent's filing on the first day this matter came on for hearing.) Rather, the matter was argued on its merits on the basis that the picketing was either sanctioned by section 76(2) or it was not and not that the applicants had chosen the wrong respondent(s). On this basis then, we are prepared to accept that by naming the respondent trade union the applicants were alleging that the officers, officials and agents of the local trade union in the general sense had sanctioned the challenged picket line and thereby had procured or encouraged an unlawful strike within the meaning of section 74 and that the same actions (i.e. the setting up of the picket lines) by such persons amounted to acts which they would know or ought to know would cause other persons to engage in an unlawful strike within the meaning of section 76(1). From this perspective the conduct of setting up picket lines which cause unlawful strikes contrary to sections 74 and 76 can be remedied by the Board under section 135 as the procuring or encouraging of unlawful strikes by officers, officials and agents of a trade union provided the allegations are made out. At no time was it suggested that it was necessary for the applicants to name an official or officer or agent of Local 663 for the matter to be entertained under sections 74 and 76. Had the issue been raised the application might have been amended at the hearing since an officer of Local 663 had notice of this matter and attended the hearing.
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 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), 11 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 condition precedents 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.
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 integrating 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 the 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 are 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 also infinite in variety as is the commercial activity which attracts picketing. Accordingly, broad general pronouncements are not very appropriate. See, for example, Local 761, 1. U. E. 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 sites or ally considerations. See Westcraft Manufacturing Ltd., [1975] 2 Can. LRBR 324 and Paterson, Union Secondary Conduct: A Comparative Study of the American and Ontario Positions, (1973), 8 U.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 justification 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 thing the reliance of 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.
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 sites 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 extent 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 sections 74 and 76(1). 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. Finally, because of the somewhat unprecedented nature of this application, we view our findings as speaking to the future and no other relief is justified for what has occurred to date.
At paragraphs 22-27 of Consolidated Bathurst Packaging Limited, supra, the Board said that:
Sections 74 and 92 must be interpretated 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 legislation 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 that 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 135, 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?
Ontario has not chosen to provide a detailed code for picketing such as exists in the Province of British Columbia. Rather, more like the National Labor Relations Act, the Act begins with the premise that all actions causing unlawful strikes are themselves unlawful and then a very general exemption is provided for "any act done in connection with a lawful strike" to accommodate labour's traditional exercise of picketing activity. Prior to the enactment of section 20 of the Judicature Act and the Board's cease and desist remedial jurisdiction, section 76(2) was largely irrelevant. Ex pane, interim and final injunctive relief was available in the courts in actions brought against picketers and framed in common law terms. Section 76(2) simply was a defense to a prosecution under the Act but was not seen as founding a positive statutory right. However, the courts did try to rationalize common law tort and contract laws with lawful strike action and important accommodations were made for picketing arising out of an otherwise lawful strike and confined to the primary work location. See Tenen Investments Ltd. v. Wueller (1966), 66 CLLC ¶14,151; Lescar Construction Co. Ltd. v. Wigman, [1969] 20 OR. 846; Refrigeration Supplies Co. Ltd., v. Ellis et al (1970), 1970 CanLII 292 (ON HCJ), 14 D.L.R. (3d) 682; Falconbridge Nickel Mines Ltd. v. Tye, Boundreau, et al (1971), 71 CLLC ¶14,101. Secondary picketing - the picketing of an innocent third party to a labour dispute - was clearly unlawful both at common law and under the Labour Relations Act. See Hersees of Woodstock Ltd. v. Goldstein et al, 1963 CanLII 151 (ON CA), [1963] 2 OR. 81.
However, the situation in the courts with respect to labour relations conflict was significantly affected by the passage of section 20 of the Judicature Act. This enactment sets down stringent rules for the availability of injunctive relief in a labour dispute. "Labour dispute" is defined very broadly and, in such a dispute, an injunction is only available if the court is satisfied "that reasonable efforts to obtain police assistance, protection and action to prevent or remove any alleged danger of damage to property, injury to persons, obstruction of or interference with lawful entry upon or exit from the premises in question or breach of the peace have been unsuccessful". See the Judicature Act R.S.O. 1980, C. 223 as amended s. 20(e). The history behind this section bears some resemblance to the forces in the United States giving rise to the Clayton Act of 1914 and the Norris -LaGuardia Act of 1932. However, Ontario courts have had to interpret the meaning of "labour dispute" to determine the application of section 20 and have held that picketing directed at neutral third parties or at employers not connected with a labour dispute falls outside the section and is amenable to injunctive relief. But in so holding, the courts have tried to ensure that an applicant has not involved himself in a labour dispute. See Commonwealth Holiday Inns of Canada v. Sunday et al, 1974 CanLII 587 (ON HCJ), [1974] 2 O.R. (2d) 601; Alex Henry & Son Ltd. v. Gale et al, 1976 CanLII 806 (ON HCJ), [1976] 14 O.R. (2d) 311; and, generally, Beatty, Secondary Boycotts: A Functional Analysis (1974), 52 Can. Bar Rev. 388.
At the very time the courts were being restrained in their involvement in labour disputes, this Board was being given more extensive remedial powers to control and regulate all forms of industrial relations conflict. Indeed, this jurisdiction was recognized by the court with respect to picketing. See Nadrofsky Steel Erecting Ltd. v. Doyle 1973 CanLII 386 (ON HCJ), [1973] 30 R. 515, 37 D.L.R. (3d) 343. In the case of picketing, general substantive guidelines were already in place and this new remedial jurisdiction therefore provided the labour relations community with an alternative forum to the courts. The Board's substantive mandate clearly differs from that of the courts and it cannot be said the two jurisdictions are congruent. For example, see the outcome of Sarnia Construction Association, supra. However, cases decided under section 20 of the Judicature Act involve a somewhat similar balance of competing factors and can provide useful guides in particular cases. This Board is obligated to determine whether "the act done" (i.e. picketing) is "in connection with a lawful strike". One interpretation might be that as long as the picketers are on lawful strike somewhere in Ontario they can picket anyone and anywhere else without restriction by this Board. We do not, however, believe that the Legislature intended to insulate picketing to this extreme extent. Rather, the emphasis of section 76(1) is on affording positive protection against picketing. Reading subsection (1) and (2) together, we believe the Legislature intended to protect innocent third parties from the effects of labour disputes while, at the same time, accommodating the traditional actions of employees involved in lawful strike action, i.e. picketing. To use the classic jargon of this area of labour relations, the Legislature has attempted to maintain a balance between the rights of unions to engage in primary activity and the rights of secondary employers to remain free from the direct involvement in the disputes of others. A similar balance arises out of the secondary boycott provisions of the National Labor Relations Act in the United States wherein section 8(b)(4)(B) prohibits secondary boycotts, as Senator Taft put it, "to injure the businesses of a third person who is wholly unconcerned in the disagreement between an employer and his employees." See 93 Cong. Rec. 4198 (1947); Levin, sup ra, page 285. It has been for the NLRB to determine whether any particular employer, complaining of unlawful secondary boycott activity, is in fact wholly unconcerned. Exercising a somewhat analogous function, this Board is required to determine whether particular actions complained of are done in connection with a lawful strike understanding that s. 76(2) does not sanction action directed at a person or employer wholly unconcerned in a disagreement between another employer and his employees. Picketing directed at a neutral third party is not in connection with a lawful strike occurring between other parties within the meaning of the subsection. Such actions may, depending on the circumstances, violate both sections 76(1) and 74 and can be remedied under sections 89 and 92.
Thus, in Sarnia Construction Association, supra, the Board found that picketing at construction sites by a striking trade union when the work of the trade was not being performed could only have the purpose of being aimed at employers and employees unconnected with the dispute except by geographical proximity. Accordingly, from this viewpoint, the Board ruled that the picketing was not in connection with a lawful strike and instructed that gates be erected form the employees of these neutral employers. The striking trade was prohibited from picketing these gates as long as their work was not being performed.
In this case we must also determine whether the applicant is truly a neutral party. In the United States "the ally doctrine" was developed under section 8(b)(4)(B) to characterize third parties who had involved themselves in a labour dispute of others and who were therefore not entitled to the protection of the secondary boycott provision. For example, if a struck employer hires strike breakers, these persons can clearly and properly be subjected to' picketing. If the struck employer instead contracts out his struck work to another employer at premises remote from the dispute, to preclude the striking employees from picketing at the new location where the work is being performed would render the strike right illusory. Moreover, the secondary employer who receives the struck work is obviously not an innocent bystander for whom either 8(b)(4)(B) of the National Labor Relations Act or s. 76(1) and S.74 of the Labour Relations Act were designed. Such a secondary employer is therefore to be viewed as standing in the shoes of the primary employer and is a proper target for picketing. Reference to this doctrine was made at paragraph 10 of the Sarnia Construction Association decision and it is the application of this doctrine that is in issue in the facts at hand. A review of a number of cases relied on by the respondents provides a useful prelude to the characterization of the applicant as either a neutral or an ally.
[emphasis added]
Finally, in dismissing the application under section 135 in Bird Construction Company Limited, supra, the Board observed, at paragraphs 34-37 that:
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 judgement 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.
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.
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 [sic] 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.
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 won 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, Carting 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.
(See also Nickel Mines Ltd. v. Tye, Boudreau, Genereux et al (1971) 71 CLLC ¶14,100 (Ont. S.C.).)
I agreed with those comments and also observe that the Supreme Court of Canada has suggested that picketing is a protected activity in this country (see Retail, Wholesale and Department Store Union, Local 580 et al v. Dolphin Delivery Ltd., (1986) 1986 CanLII 5 (SCC), 33 D.L.R. (4th) 174 at p. 187 per McIntyre J.).
In this case, McCall is still on the job site. The work that its employees, who are members of Local 785, were doing prior to May 24, 1988 is now being done, at the instance of the applicant, by non-union employees in the face of the carpenters' lawful province-wide strike in the ICI sector of the construction industry. Local 785 established a picket line at McCall's primary job site only when the struck work began to be done. I found it unnecessary and inappropriate to comment on the contractual rights that exist as between the applicant and McCall. They have not settled that issue between themselves and the forum for adjudicating a dispute with respect thereto is not the Board. In the context of this application, it was my view that, by attempting to avoid the effect of the carpenters' strike by resorting to what it perceived to be its rights under its contract with McCall, the applicant involved itself in that labour dispute. Accordingly, it was not open to the applicant to plead that it is an innocent bystander. Further, I observed that if such an avenue was open to parties in the position to the applicant (like for example, the owner of the Dome Construction in Toronto) it would have very far reaching consequences, including, arguably at least, making a trade union's right to strike and to picket in support thereof largely illusory.
In my view, the picketing of the applicant's job site by Local 785 was in connection with a lawful strike within the meaning of section 76(2) of the Labour Relations Act as that provision has been interpreted and applied by the Board. For all of the foregoing reasons, this application was dismissed.