Local 27, United Brotherhood of Carpenters and Joiners of America v. Local 183, Labourers International Union of North America, 1988 CanLII 3739

Ontario Labour Relations Board

[1988] OLRB Rep. March 259

1931-87-U Local 27, United Brotherhood of Carpenters and Joiners of America, Complainant v. Local 183, Labourers International Union of North America, Bay-Tower Homes Company Ltd., Bay-Tower Management Inc., Ledi Properties Inc., 518270 Ontario Limited, 554614 Ontario Limited, Respondents

BEFORE: Robert Herman, Vice-Chair, and Board Members C. A. Ballentine and W. N. Fraser.

APPEARANCES: David McKee and Luis Camara for the applicant; C. M. Mitchell for the respon­dent Local 183, Labourers International Union of North America; no one for the respondent com­panies.

DECISION OF THE BOARD; March 28, 1988

Decision

1. In this complaint under section 89 of the Labour Relations Act, the Board is asked to decide whether a union in a legal strike position can picket other companies at geographically dis­tinct sites when those companies are not assisting the employer with the performance of any of the struck work.

2. Labourers Local 183 (hereinafter "Labourers" or "Local 183") acquired bargaining rights with respect to 518270 Ontario Limited (hereinafter "518270") in a decision of the Board dated September 4, 1986. At the time, 518270 was involved in constructing residential houses on a site in Scarborough, Ontario. 518270 is fifty per cent owned by the wife of Arthur Saccoccia and fifty per cent owned by the wife of Joseph Wolf. Notwithstanding that the wives are the registered owners, we are satisfied that for all practical purposes this company is controlled and operated by Arthur Saccoccia and Joseph Wolf, and their wives take no active role in the operation of the com­pany.

3. Local 183 acquired its bargaining rights with respect to this company through a rather tortuous route. In an application dated October 11, 1985, Local 183 applied to be certified with respect to four companies, none of which included 518270. This initial application for certification sought bargaining rights with respect to Bay-Tower Homes Company Ltd. (hereinafter "Bay­-Tower Homes"), Bay-Tower Management Limited (hereinafter "Bay-Tower Management"), Ledi Properties Inc. (hereinafter "Ledi"), and 554614 Ontario Ltd. (hereinafter "554614"). Bargaining rights were sought with respect to construction occurring on the same Scarborough residential housing project that Local 183 subsequently obtained bargaining rights for with respect to 518270. In the original application for certification, naming only the other four companies, the applicant specifically relied upon the provisions of sections 1(4) and 63 of the Labour Relations Act. One of the four named companies filed a reply, denying that the provisions of section 1(4) and 63 of the Act had application. In a decision dated October 30, 1985, the Board noted that the application was withdrawn by leave of the Board.

4. Then in an application dated March 19, 1986, Local 183 applied with respect to the same construction site, this time naming only Bay-Tower Homes as respondent employer. No ref­erence was made in this second certification application to the provisions of sections 1(4) or 63 of the Act. The Board issued a decision, dated April 11, 1986, certifying Local 183 with respect to Bay-Tower Homes. That certificate was subsequently revoked on April 24, 1986, in response to representations from the respondent, and a Board Officer was appointed to enquire into the com­position of the bargaining unit. A request was thereafter received from counsel for Local 183, ask­ing that the application be amended to change the name of the respondent from Bay-Tower Homes to Bay-Tower Management. A hearing was held with respect to this request to amend the name of the respondent, and at that hearing Local 183 changed its position and requested that the name of the respondent in the application be amended from Bay-Tower Homes to 518270, and not as previously requested, to Bay-Tower Management. The Board subsequently directed that the application be amended to substitute 518270 for Bay-Tower Homes as the respondent.

5. In this application, the second certification application brought with respect to the Scar­borough construction site, Bay-Tower Homes filed a reply indicating that it had employees work­ing on site. This reply was filed prior to the applicant Labourers' request that the name of the respondent be amended to 518270. Consequent upon the Board directing the requested amend­ment, 518270, now the employer respondent in the proceeding, filed its own reply indicating that it was involved in house construction on the same site as Bay-Tower Homes and indicating that it too had employees working on site. Although Local 183 was thereby put on clear notice that Bay-Tower Homes had employees on site, no reference was made to or reliance sought upon sections 1(4) or 63 of the Act, nor did Local 183 seek bargaining rights, subsequent to its amendment request, with respect to Bay-Tower Homes. Local 183 was certified to represent a bargaining unit of employees of 518270 in a decision dated September 4, 1986.

6. As noted 518270 is fifty per cent owned by Saccoccia's wife and fifty per cent owned by Wolf's wife. Saccoccia and Wolf themselves each own fifty per cent of Bay-Tower Homes. Bay-Tower Management is one hundred per cent owned by Wolf, and Ledi is one hundred per cent owned by Saccoccia. 554614 is one hundred per cent owned by Wolf's son, David. Notwithstanding the different legal ownership, all five companies are effectively managed, controlled and directed by Saccoccia and Wolf, with no active involvement by either Wolf's son or either of their wives. This control over the affairs of the five companies includes control and direction with respect to labour relations matters. All five companies have been involved in residential housing construc­tion. Which of the five might be involved in a particular housing project varied, but regardless of which companies were involved, the same contractors and sub-contractors were retained. We are satisfied that the five companies carry on associated or related activities or businesses, under the common control and direction of Saccoccia and Wolf. Parenthetically we note that no request was made of the Board pursuant to section 1(4) of the Act in the proceeding before us. In any event, although the conditions precedent to the exercise of our discretion pursuant to section 1(4) have been met, we would not necessarily grant such a declaration had it been requested. That determi­nation depends on whether the Board considers it appropriate to so declare, having regard to all the circumstances.

7. In February or March of 1987, representatives of Local 183 met with Wolf and Saccoc­cia. The representatives advised Wolf and Saccoccia that Local 183 was in a legal strike position with respect to 518270, and Local 183 wanted to sign collective agreements for all the companies of Saccoccia and Wolf, covering labourers' and carpenters' work. Nothing concrete resulted from this first meeting, other than Saccoccia and Wolf being made aware of Local 183's position, and Local 183 being advised that Wolf and Saccoccia were not prepared to sign the requested agreements.

8. The next meeting between Local 183 representatives and Wolf and Saccoccia took place in April or May of 1987. The Labourers again indicated that they wanted to sign up the Wolf and Saccoccia companies, and that any such agreements must include a "no subcontracting" clause whereby the employer would agree to sublet work in basement forming, concrete and drain, and frame carpentry only to contractors in contractual relations with the Labourers. By the end of this meeting, Wolf and Saccoccia were prepared to sign collective agreements with Local 183 with respect to all five companies (not only 518270 for which Local 183 had bargaining rights), but only if the collective agreements did not include the "no subcontracting" clause. This position was unac­ceptable to Local 183 and the meeting adjourned without the participants reaching agreement.

9. A final meeting took place in early August of 1987. At that point, Local 183 had become aware that a new construction project at Morningside and Finch was either shortly to com­mence or had just commenced. At this meeting, Local 183 insisted again on the "no subcontract­ing" clause, and Wolf and Saccoccia initially remained resistant to signing agreements containing such clauses. Local 183 representatives indicated to Wolf and Saccoccia that if they didn't sign the agreements Local 183 would close down their construction site at Morningside and Finch. The par­ticipants discussed signing agreements containing a specific time exemption for the implementation of the "no subcontracting" clause, with the clause to take effect some specified time in the future. Wolf and Saccoccia wanted to at least ensure that the "no subcontracting" clause would not be effective until after completion of the Morningside and Finch project. They indicated they were willing to sign agreements exempting the application of the "no subcontracting" clause for a period of two years. Local 183 was not prepared to agree to such a lengthy exemption period. Both sides were willing to sign agreements containing an exemption clause, but nothing was finalized at this meeting.

10. The discussions at all three meetings, including the final meeting in August 1987, focused on Local 183's demand that Wolf and Saccoccia sign agreements with respect to all five companies, and not only 518270 for which Local 183 had bargaining rights. As the witnesses for Local 183 testified, Local 183 was interested in signing agreements with respect to "Bay-Tower", the real business of Wolf and Saccoccia. The Labourers did not concern themselves with the partic­ular corporate entity for which Local 183 had bargaining rights. Nor did the representatives of Local 183 at any time enquire of Wolf and Saccoccia whether 518270 was involved in either the construction project on the Morningside and Finch site or any other project. In the Labourers' view, even though Local 183 was only certified with respect to the one company, the real enter­prise was Wolf and Saccoccia (or Bay-Tower), and the respondents' corporate structure was irrele­vant.

11. Representatives of Local 183 concluded that the negotiating sessions with Wolf and Saccoccia were not going to result in signed agreements soon enough, given that the project at Morn­ingside and Finch had already commenced. Local 183 therefore set up a picket line around the Morningside and Finch site in the latter days of August, 1987. Thirty to fifty members of Local 183 picketed, obstructing traffic and trying to discourage vehicles or individuals from crossing the picket line. We are satisfied that the picket line effectively caused employees not to report for work though scheduled and required to report. Some of these employees were members of Local 183 working for subcontractors on the site.

12. Although Saccoccia testified that Bay-Tower Homes and Ledi were the only companies constructing houses on site~ Bay-Tower Homes and Bay-Tower Management brought an applica­tion under section 135 of the Act, seeking to obtain, inter alia, cease and desist orders and direc­tions that the picketing stop. In this application, Bay-Tower Homes and Bay-Tower Management claimed that Ledi and 554614 were also present and constructing on the site. We are satisfied that the four companies, for which Local 183 did not have bargaining rights, were building on the project. Only 518270 was not present and constructing at the Morningside and Finch project. The complainant Carpenters Local 27 also filed an application under section 135, requesting (inter alia) that the picket line be terminated.

13. Following several days of hearing in late August, 1987, during which the picket line con­tinued, the section 135 applications brought by the companies and Carpenters Local 27 were both withdrawn. With respect to the companies' application, it was withdrawn on the basis of an agree­ment struck between Local 183 and all five employers, in which all five of the companies signed collective agreements with Local 183. All the agreements contained the "no subcontracting" clause, but with an additional clause stating that the "no subcontracting" clause would not be effective until January 1, 1989. Local 27 of the Carpenters withdrew its application without preju­dice to its right to bring a subsequent complaint pursuant to section 89 of the Act~ the very com­plaint before this panel.

14. Although the companies do carry on associated or related activities under common con­trol and direction~ we are not satisfied, though urged upon us by counsel for Local 183, that the companies are "functionally integrated"~ or effectively the same single employer, or constitute the real commercial enterprise involved (as it was variously described by the parties). The significance of these labels is that the judicial decisions of relevance, both Canadian and American, apply these labels and generally decline to enjoin picketing where the court or tribunal concludes that the pick­eted employer is, to use one label, functionally integrated with the primary employer. (See~ for example: Lescar Construction Co. Ltd. v. Wigman, 1969 CanLII 383 (ON HCJ), [1969] 2 OR. 846; Commonwealth Holiday Inns of Canada Ltd. v. Sundy et al, 1974 CanLII 587 (ON HCJ), [1974] 2 OR. (2d) 601; Alex Henry & Son Ltd. v. Gale et al, (1976) 1976 CanLII 806 (ON HCJ), 14 O.R. (2d) 311; Williams et al v. Aristocratic Restaurants (1947) Ltd., 1951 CanLII 24 (SCC), [1951] 3 D.L.R. 769; Nedco Ltd. v. Nichols et al, 1973 CanLII 470 (ON HCJ), [1973] 3 O.R. 944 and Nedco Ltd. v. Clark and all other members of Communications Workers of Canada, Local No.4, [1973] CLLC 184; Refrigeration Supplies Co. Ltd. v. Laverne Ellis et al, [1970] CLLC 188; Sasso Disposal Ltd. v. Webster et al, (1975) 1975 CanLII 402 (ON HCJ), 10 O.R. (2d) 304; Tenen Investments Limited v. Wueller et al, (1966) CLLC 576; Inglis Ltd. v. Rao et al, (1974) 1974 CanLII 579 (ON HCJ), 2 O.R. (2d) 525; Seaboard Advertising Co. Ltd. v. Sheet Metal Workers International Ass'n, Local 280 et al, (1971) CLLC 399; Tatham Co. Ltd. v. Blackburn et al, (1975) 1975 CanLII 743 (ON HCJ), 9 O.R. (2d) 570). While all five companies were under the common direction and control of Wolf and Saccoccia, with no active or real control by any other individual, it is not clear on the evidence before us that the five employers are functionally integrated and represent part of the same commercial enter­prise. We heard that all five companies~ at different times~ were involved in the construction of sin­gle family dwellings. At any given time a number of the companies would be involved on the same construction project. However, we received no evidence of the respective work forces of each of the companies, nor any evidence or suggestion that employees ever interacted with or transferred or exchanged between the companies. To the contrary, the replies filed in the certification applica­tion indicated that at the same construction project in Scarborough, both Bay-Tower Homes and 518270 had their own respective work forces. We also had no evidence, beyond that already set out, as to whether any of the five companies are involved in other than housing construction projects with each other, nor was there any evidence that any of the four companies other than 518270 was in any way created or set up in order to defeat the bargaining rights of the Labourers with respect to 518270. Indeed, all four companies existed before Local 183 acquired bargaining rights for 518270. Some or all of the five companies would together engage in construction projects building residential houses. In this sense they were engaged at least on occasion in parallel busines­ses. But on the evidence we are not prepared to say that the businesses are functionally integrated, nor can we say that the work that 518270 would ordinarily have performed was being performed by any or all of the four companies at the construction site at Morningside and Finch. Local 183 was indifferent to whether or not the work 518270 would ordinarily perform was being performed either by 518270 itself or by the other four companies at the site in question. Local 183 was pursu­ing a course of pressuring Wolf and Saccoccia to sign agreements with respect to all five compa­nies, regardless of whether Local 183 had bargaining rights for them.

15. Carpenters Local 27 complains that Local 183 has breached sections 70 and 74 of the Act in its conduct of setting up a picket line at Morningside and Finch, a site where the employer for which it had bargaining rights was not present and not carrying on business. Local 27 also argues that the four companies building on site were not performing any of the work that 518270 would ordinarily perform, nor assisting in any fashion so as to bring them within the "ally doc­trine" under which the Board in prior decisions has declined to prohibit picketing at other than the primary site. Local 27 argues that it is only in situations where the employers being picketed are performing struck work or assisting the primary employer with respect to its business that the Board will allow picketing of other than the primary employer. Where a union cannot establish that any assistance of this nature is being provided to the primary employer, as in the instant case, Local 27 argues that picketing at geographically distinct sites is not permissible even when the employers at such sites are effectively controlled by the same individuals who control or own the primary employer. Local 27 submits that sanctioning of such picketing would undercut the provi­sions of section 1(4) of the Act and the provisions for applying for certification. Picketing ought not to be permitted as an alternative method of acquiring bargaining rights. In Local 27's submission, it was incumbent upon Local 183 to either apply for bargaining rights with respect to any of the other four companies, or apply pursuant to section 1(4) of the Act for those bargaining rights, and failing such application, Local 183 cannot be allowed to set up a picket line for recognition purposes.

16. Local 183 begins by arguing that picketing must now be taken to be a constitutionally protected activity, in light of the decision of the Supreme Court of Canada in 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. Any restrictions on the right of unions to picket, in the absence of picket line misconduct (and no misconduct on the line is alleged), must now be assessed in light of the constitutionally protected nature of the activity. Local 183 points to the provisions of section 76 of the Act, and particularly section 76(2). It argues that since it was in a legal strike position with respect to 518270, and there­fore entitled to picket 518270, it was also entitled to picket other legal entities which are function­ally integrated with the struck employer, or put differently, part of the same commercial enterprise encompassing the struck employer. Local 183 denies that the purpose of the picketing was to pres­sure the companies for which it did not have bargaining rights to sign collective agreements, but rather the purpose was to obtain collective agreements with respect to the real and functional employer in question. In counsel's submissions, this was neither recognition picketing nor a recog­nition strike, as Wolf and Saccoccia were in fact the real employers in question, and Local 183 was simply negotiating with and ultimately picketing the real functional employer (Wolf and Saccoc­cia), regardless of the corporate vehicle used to build the houses on a particular project. Counsel also argued on the facts that no recognition picketing had occurred, since Wolf and Saccoccia had agreed to recognize Local 183 with respect to all five of their companies, and had agreed to sign collective agreements with Local 183, prior to any picketing having occurred. Since Wolf and Sac­coccia had clearly indicated a willingness to sign agreements, prior to the picketing, the picketing did not constitute an attempt to pressure them to recognize Local 183 as bargaining agent for the four companies, but merely an attempt to pressure them to agree to a particular clause in the col­lective agreements. In these circumstances, argued counsel, the picketing could not be character­ized as constituting a recognition strike. Alternatively, even if the picketing was found by the Board to be a recognition strike, such picketing must be considered permissible in that it arose "in connection with a lawful strike" within the meaning of those words in section 76(2) of the Act, and in light of the recent Supreme Court of Canada pronouncement that such activity is constitutionally protected. Prior Board's decisions holding that such strikes were unlawful must be reconsidered in light of the recent Supreme Court of Canada pronouncement.

17. The applicable sections of the Act read as follows:

1.-(4) Where, in the opinion of the Board, associated or related activities or businesses are car­ried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions con­cerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

71. 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.-(1) 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 not apply to any act done in connection with a lawful strike or lawful lock-out.

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.

18. Two important questions arise for the consideration of the Board in the instant case. First, the Board is asked to decide whether picketing of a geographically distinct site is permissible where the companies active on the picketed site are related to the primary employer, but not per­forming any of the struck work or falling within the parameters of the ally doctrine. Second, should a breach be found with respect to such picketing activity, what are the appropriate remedies that should be directed at the request of another union active on the site in question, but whose bar­gaining or other representational rights have not been affected by the picketing behaviour of which complaint is made.

19. The three major Board decisions on point are all of recent vintage: 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. While there are major distinguishing features in each of these cases, they set out the approach taken by the Board when dealing with picketing issues. In Sarnia Construction Association, the Board sketched that approach as follows:

20. 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, 119771 OLRB Rep. Nov. 713. See also Local 273, lnternational 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.

The issue before us is similar, in that the respondent Local 183 relies upon section 76(2) and argues that the picket line around the Morningside and Finch site was "in connection with a lawful strike" and therefore ought not to be found to have breached the Act. The Board in Sarnia Construction Association continued:

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 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, I. 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., 11951] 5CR. 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 Wescraft 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 think 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.

11. In Consolidated-Bathurst Packaging Limited (sup ra), the Board wrote as follows:

12. 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 legislation [sic] 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?

13. 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 parte, 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 defence 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 (1066), 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 O.R.81.

14. 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 OR. (2d) 311; and, generally, Beatty, Secondary Boycotts: A Functional Analysis (1974), 52 Can. Bar Rev. 388.

15. 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, supra, 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.

16. 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 for the employees of these neutral employers. The striking trade was prohibited from picketing these gates as long as their work was not being performed.

17. 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.

18. Since some of the employees of at least some of the subcontractors working on site declined to cross the picket line set up by Local 183, though required under their respective collec­tive agreements to work on the days in question, we are satisfied that those employees were engaged in unlawful strikes. Those employees included members of Local 183, and we are satisfied that one of the intended results of the picket line set up and authorized by Local 183 was to cause members of the Labourers to engage in an unlawful strike. Local 183 has therefore called or autho­rized an unlawful strike within the meaning of section 74 of the Act. We must next consider whether 76(2) provides a defence to what would otherwise be the impermissible and illegal behav­iour of Local 183. Can we say in all the circumstances that the picketing that occurred was done "in connection with a lawful strike"?

19. We first assess the effect of the decision of the Supreme Court of Canada in Dolphin Delivery (supra), wherein the Court found that the picketing conduct before it fell within the provi­sions of section 2(b) of the Charter, guaranteeing freedom of expression as a fundamental free­dom. As Mr. Justice McIntyre noted, at page 187 of the decision:

it is evident that the purpose of the picketing in this case was to induce a breach of contract and thus to exert economic pressure ... It is equally evident that, if successful, the picketing would have done serious injury to the respondent. There is nothing remarkable about this, how­ever, because all picketing is designed to bring economic pressure on the person picketed and to cause economic loss for so long as the object of the picketing remains unfulfilled. There is, as I have earlier said, always some element of expression in picketing. The union is making a state­ment to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expres­sion, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That free­dom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.

23. But the question before us is what limits on picketing are to be imposed, within the con­fines of the legislation, and not whether picketing per se is a protected activity. Prior decisions on point have restricted picketing, while specifically conceding for purposes of the decision that the picketing involved is part of a constitutionally protected activity, freedom of expression. For exam­ple, in Horton CBI, Limited, [1985] OLRB Rep. June 880, the Board was asked to consider the propriety of picketing activity, in light of the argument that picketing was constitutionally pro­tected. As the Board therein stated:

24. Having 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 [sic] 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.

And as Mr. Justice McIntyre himself noted in the passage above from Dolphin Delivery, because activity involves some expression does not necessarily mean it will be protected. Threats of vio­lence or acts of violence, for example, would not be so protected.

24. The question therefore is whether restricting the picketing activity that occurred would be a reasonable restriction or limit within the meaning of the Charter, and given the legislative framework of the Labour Relations Act. Local 183 argues forcefully that the restriction sought is not a reasonable limit within the meaning of the Charter. Apart from other difficulties, one con­cern we have with this submission of Local 183 is that this Charter argument was only raised for the first time in final submissions. Quite apart from the fact that notice of this proceeding and the rais­ing of a Charter issue was not given to either the provincial or federal Attorneys-General (see in this regard: F. D. V. Construction Limited, [1986] OLRB Rep. May 617, and Dominion Paving Limited, [1986] OLRB Rep. July 946), as there was no notice prior to the conclusion of the evi­dence that the matter would be raised, we have some concern that the evidentiary context was not fully developed with respect to the scope of any reasonable limitation on picketing activity.

25. Accordingly~ we will consider the propriety of the picketing in light of the provisions of the Labour Relations Act, and not with reference to section 1 of the Charter. We conclude that some limits on picketing are reasonable. As a general description of where we might seek to draw those limits, we agree with and adopt the approach taken by the Board in its earlier trilogy, Samia Construction Association, Consolidated-Bathurst and Bird Construction, and applied by the Ontario courts in a somewhat different context when they have considered applications pursuant to section 20 of the Judicature Act, or subsequently, section 115 of the Courts of Justice Act. That approach involves drawing the limits on picketing by attempting to protect innocent or wholly neu­tral third parties from the effects of the labour dispute in question~ while allowing picketing which is in fact in connection with the lawful labour dispute. As the Board stated in Consolidated-Bathurst, (supra) in paragraph 25: "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."

26. Whether Local 183 focuses its claim to the right to picket geographically distinct employers on the "functional integration" between those employers and the primary employer or on the fact those employers meet the prerequisites for the Board to consider exercising its discre­tion under section 1(4) of the Act is not significant in the case at hand. We need not and do not decide in the instant case whether picketing of "functionally integrated" employers is generally to be permitted. For the purposes of this complaint, we are prepared to assume, without deciding, that a union in a legal strike position is entitled to picket geographically separate premises of other employers (in the sense that the employers are separate legal entities) when those employers are either "functionally integrated" or carry on associated or related activities or businesses under common control or direction regardless of whether a section 1(4) proceeding has been brought with respect to the picketed companies, regardless of whether the Board has made a finding pursu­ant to that section, and regardless of whether the employers located at the distinct site are per­forming any of the struck work or assisting the primary employer in any of the circumstances in which the Board would conclude that the ally doctrine would apply.

27. Assuming therefore (without deciding) that picketing of employees at distinct sites is permissible in the circumstances described in the preceding paragraph, we nevertheless conclude that the picketing before us was impermissible and a breach of the Act. The picketing at the Morn­ingside and Finch site was not aimed predominantly at exerting pressure on the primary employer, 518270, with respect to the labour dispute Local 183 had with that employer. To the contrary, it is clear that Local 183 was picketing in order to apply pressure to the other four companies, with a view to compelling those other four companies to both grant bargaining rights to and sign collec­tive agreements with Local 183.

28. It would be artificial to conclude that the picketing did not occur for the purpose of inducing the picketed employers to grant bargaining rights to Local 183 and to induce them to sign agreements containing the "no subcontracting" clause. The meetings between Local 183 and Wolf and Saccoccia were attempts by Local 183 to have Wolf and Saccoccia sign agreements with respect to all five companies. Local 183 was indifferent as to whether 518270 was working on the Morning-side and Finch project or, indeed, as to whether that company was engaged in any project any­where. Local 183 was intent upon getting Wolf and Saccoccia to sign agreements, which would nec­essarily encompass the recognition of Local 183 as having bargaining rights with respect to all the companies controlled or directed by Wolf and Saccoccia. When these two individuals refused to sign the requested agreements, a picket line was set up, without Local 183's being aware of or even asking whether 518270 was operating on site, in order to pressure all five companies into signing agreements including the "no subcontracting" clause. There had at that stage clearly been no vol­untary recognition of Local 183 by the four companies being picketed. Any such recognition was made by Wolf and Saccoccia conditional upon, and without effect until, the parties agreed to the terms of the collective agreements. In these circumstances, we are satisfied that the purpose of the picketing was at least in large part to pressure the four picketed employers to sign agreements with Local 183, a union which did not hold bargaining rights with respect to those companies.

29. Picketing for this purpose constitutes a breach of sections 74 and 76(1) of the Act, and is not saved by the provisions of section 76(2) of the Act. To countenance such picketing would allow unions to circumvent the procedures contained in the Act specifically designed to deal with the acquisition of bargaining rights, through Board proceedings such as applications for certification and applications pursuant to section 1(4) of the Act.

30. A somewhat analogous case is Horton CBI, Limited, (supra). In that case a company was being picketed by a union to force it into assigning certain work to the picketing union. As the Board found, such picketing constituted a resort to economic pressure in circumstances where the picketing union was not content to follow the specific provisions within the Act for resolving dis­putes over jurisdictional matters. That panel of the Board decided that it was a reasonable restric­tion on picketing to preclude it where the picketing was being utilized in order to avoid legislative provisions specifically designed to deal with the nature of the dispute in question. The Board has also found recognition picketing to be unlawful. (See, for example, Traugott Construction Limited, [1981] OLRB Rep. Nov. 1680; Traugott Construction Limited, [1982] OLRB Rep. June 958; upheld on judicial review at 84 CLLC 12,098.)

31. For the foregoing reasons we have concluded that the picketing by Local 183 was not "in connection with a lawful strike" within the meaning of section 76(2) of the Act, in that it was picketing in connection with attempts to pressure the picketed employers into recognizing the pick­eting union and signing collective agreements with it.

32. As we are satisfied Local 183 has breached section 74 of the Act, it is unnecessary for us to comment upon any possible breach of section 70, the other section relied upon by the complain­ant.

33. We turn lastly to consider the appropriate remedy. In a prior decision in the instant complaint, the Board (differently constituted but with the same Vice-Chair and 1 Board Member) dealt with preliminary objections as to the status or standing of Carpenters Local 27 to file the complaint ([1988] OLRB Rep. Jan. 4). In that decision, the Board wrote, in part, as follows:

34. Turning to the first preliminary objection, whether Carpenters Local 27 has standing to bring the instant complaint, we consider this issue with respect to the individual sections pleaded in the complaint. It was common ground between the parties that a complaint pursuant to section 3 cannot stand alone, and if Carpenters Local 27 has no standing pursuant to any other section of the Act, the complaint pursuant to section 3 must also be dismissed.

35. The complaint is hereby dismissed with respect to section 60. In order to have standing to bring a complaint pursuant to this section, on the explicit wording of section 60(1), the com­plainant must either be an employee in the bargaining unit or a trade union representing an employee in the bargaining unit. Carpenters Local 27 does not (and could not) claim to be an "employee in the bargaining unit", nor is there any suggestion in the complaint that Carpenters Local 27 represents any employees in the bargaining units covered by the collective agreements between Labourers Local 183 and any of the respondent employers. In these circumstances, we are satisfied that the complainant has no standing to file the section 60 complaint.

36. The complainant in effect withdrew the complaint pursuant to section 65, acknowledging that it was not alleging a breach of this section.

37. The complaint pursuant to section 67(2) of the Act is also dismissed, as the facts as pleaded do not disclose a prima facie case pursuant to this section. Section 67(2) was designed to protect the right of a trade union which has the legal right to represent employees in a bargaining unit, to represent such employees in their employment relationship without interference from other trade unions. The complain does not set out any facts suggesting that Labourers Local 183 has attempted in any way to interfere with the representation by Carpenters Local 27 of the employ­ees represented by Local 27 with respect to the subcontractor Amarcord, the only employees that the complainant represents. In this regard, the complainant asserts, with no facts pleaded in support, that Labourers Local 183 "obtained bargaining rights aimed directly at interfering with the bargaining rights of Carpenters Local 27". (See paragraph 18 of the complaint). The mere assertion of this does not constitute a prima facie case. No facts are alleged suggesting how or when the complainant's bargaining rights might have been interfered with. And the fact that any or all of the respondent employers might have signed collective agreements with Labourers Local 183 in the circumstances alleged, does not of itself imply that the bargaining rights held by Carpenters Local 27 with Amarcord have in any way been affected, nor that there has been any interference with its ability to represent employees in the Amarcord bargaining unit. Nor did counsel for the complainant suggest in oral submissions how the Labourers' conduct could have interfered with those bargaining and representational rights. In these circumstances, we are satisfied that no prima facie case has been alleged.

38. With respect to the remaining two sections, sections 70 and 74 of the Act, the complaint in essence alleges that through activity impermissible under the Act, an illegal recognition strike, Labourers Local 183 was able to pressure the respondent employers into signing the respective collective agreements. Carpenters Local 27 alleges that the result gained by this illegal activity either has or will directly interfere with the bargaining rights held by Local 27, or alternatively (as expanded in oral submissions), interfere with the work members of Local 27 perform pursu­ant to the collective agreement between Local 27 and subcontractor Amarcord. Local 27 argued that precluding it from filing the instant complaint with respect to this illegal conduct would be to sanction the illegal behaviour of Labourers Local 183 and prevent the injured party from seeking redress for any consequences.

39. Given the legal issues raised, the specific wording of sections 70 and 74 of the Act, the con­struction industry context, and the historical and ongoing dispute between the Carpenters and Labourers, we are not prepared at this preliminary stage to preclude Carpenters Local 27 from having this aspect of the complaint heard on its merits. Accordingly, reserving on the issue of whether Carpenters Local 27 has standing to bring the complaint pursuant to sections 70 and 74, the complaint will proceed on its merits with respect to the alleged breach of these two sections and on the basis of the material facts pleaded in the complaint with respect to the allegedly ille­gal strike. In light of our comments above, the complaint will also proceed with respect to sec­tion 3 of the Act.

40. The second preliminary objection as characterized by the respondent Labourers Local 183, is whether paragraph 19 of the complaint ought to be struck and whether the complainant ought to be precluded from raising the matters set out in that paragraph. Both parties made lengthy submissions on this matter but we do not consider it necessary to set them out here. Suffice to say that Labourers Local 183 submitted that the allegations and issues contained in paragraph 19 of the complaint raise the very issue that a prior panel of the Board would not allow the Carpen­ters to raise, on the grounds of delay and abuse of process: Toronto Housing Labour Bureau, supra. It is Local 183's position that it would be an even greater abuse to countenance the rais­ing of this issue in this proceeding. In response, counsel for Carpenters Local 27 characterized paragraph 19 as more properly consisting of argument, and submitted that such matters could in fact be raised by way of argument. The Board has concluded that paragraph 19 need not be struck from the complaint. The case that the Board will hear is confined, with reference to the material facts pleaded in paragraphs 1 to 19 of the complaint, to whether Labourers Local 183 breached either or both of sections 70 and 74 of the Act. Absent a finding of such breach, no remedy can or would issue. If the Board does conclude that Labourers Local 183 has breached the Act, then Carpenters Local 27 can argue that the appropriate remedy includes a declaration that either the subcontracting provisions in the collective agreements or the collective agree­ments themselves are null and void. There is, however, no suggestion in the complaint that the signing of the collective agreements, whether or not there were employees in the bargaining units at the time the agreements were signed, constituted breaches of sections 70 and 74 of the act. The ambit of the case will accordingly be restricted to what is arguably relevant to the alleged breach(s) of sections 70 and 74, as particularized in the complaint, and as we have sum­marized in paragraph 9 above.

41. The Board reserved on the issue of whether the applicant had standing to bring the instant complaint, but directed that the case under sections 3, 70, and 74 be heard on the merits. We note that the activity being complained of (picketing) had terminated when this complaint was filed and the complainant did not allege that any of its bargaining or representational rights had been interfered with by the picketing behaviour. We also note the relief being sought by the com­plainant. A declaration is sought that Local 183 has violated the Labour Relations Act, and decla­rations are also sought that the collective agreements entered into between Local 183 and the four companies, other than 518270, are void and that the subcontract clause in the 518270 agreement is also void or, in the alternative, that the subcontracting restrictions in all five collective agreements are void. Local 27 does not ask that the collective agreement between 518270 and Local 183 be declared null and void (notwithstanding that it resulted from the same impermissible picketing activity), but only that the subcontract clause within it be so declared. There is no request that damages be awarded to Local 27 on behalf of any member(s) who did not report for work because of the picketing activity.

42. We will issue declaratory relief indicating that Local 183 breached the Act in its picket­ing activity, as discussed above. But ought we to nullify the collective agreements, or alternatively, the "no subcontracting" clauses within those agreements? None of the bargaining rights of the complainant have been affected (nor did the complainant so suggest) by the picketing activity com­plained of before us. Nor have any of the representational rights of Local 27 as the exclusive bargaining agent of the employees of M & M Amarcord been affected by the picketing behaviour. The picketing had ceased before the instant complaint was filed. Notwithstanding that four of the employers were involved in an application under section 135 to terminate the picketing activity, and notwithstanding that the agreements were signed as part of a settlement of that application, none of the five employers in question has subsequently complained about the collective agree­ments which they signed with Local 183. Nor do they complain about the agreements in the pro­ceeding before us. Indeed, though named as respondents, none of the five employers has chosen to participate in this proceeding. All five employers have adopted and acted upon those collective agreements (by, for example, forwarding the requisite deduction and contribution forms to Local 183 with respect to all five companies). Similarly, no employee who might be covered by the appli­cable collective agreements has sought relief from such pursuant to section 60 of the Act, wherein an employee can challenge a voluntary recognition agreement. Ought we to nullify all or part of the five collective agreements at the request of a party who cannot claim that any of its rights under the Act have been interfered with by the signing of the agreements in question?

43. In Traugott Construction, (supra), the Board would not enforce a section 124 grievance against the employer who complained that the collective agreement under which the grievance was filed resulted from illegal activity on behalf of the union. The Board there declined to enforce the agreement by declining to consider the merits of the grievance in question~ but commented (at paragraph 26) that "we wish to emphasize, however, that had Traugott performed a positive act to indicate that it had accepted the working agreement~ the result in the present case would have been different. Thus, had Traugott accepted the terms of the working agreement, it could not later deny such an acceptance. In the present case, however, there was no evidence of such a positive act of acceptance." In the instant case, the employers involved have declined to seek Board inter­vention to nullify the agreements; they have adopted the agreements~ and have conducted them­selves as if they were content that the agreements remain binding. Moreover, no employee covered by the agreements has sought to challenge them.

44. We must also keep in mind the special nature of the construction industry. It is quite common for numerous subcontractors to be engaged on a particular construction project, each in a bargaining relationship with a different union. The Board must consider the appropriateness of remedial relief in light of this context, and the potential for creating an atmosphere ripe for war­fare and internecine quarrelling between competing unions. Unions in this sector do obtain, through voluntary recognition, collective agreements which may preclude other unions from orga­nizing an employer or from obtaining work from that employer. But such agreements are not per se illegal or improper in the construction industry (see, for example, Nicholls-Radtke, [1982] OLRB Rep. July 1028.) In addition to those considerations, the Board, in determining what relief may appropriately be granted to the complainant to remedy Local 183's contravention of the Act, must also consider, amongst other matters, the nature of the breach and the interest of the party complaining about the breach. Here, the picketing activity had ceased prior to the filing of the instant complaint. The complainant is not seeking any damages for its members, such as wages lost as a result of the picket line, nor does the complainant seek to have nullified the collective agree­ment signed by 518270.

45. Having regard to all of the evidence, we are satisfied that Wolf and Saccoccia would vol­untarily have signed collective agreements containing a "no subcontracting" clause, with respect to all five companies, had Local 183 agreed to exempt the application of the "no subcontracting" clause until the Morningside and Finch project was finished. Such an exemption clause, granting the exemption until a specific date, was in all the agreements signed after the picketing. Wolf and Saccoccia would have signed agreements prior to the picketing had they provided for an exemption of two years. The agreements eventually signed contained an exemption until January 1, 1989 and the employers have acted upon these agreements and do not seek to challenge them. These agree­ments were signed because they satisfied the concerns of Wolf and Saccoccia. The picketing did not lead to agreements being signed that would not have been signed but for the impermissible activ­ity.

46. In the circumstances of this case it appears to us that the appropriate remedy is a decla­ration that Local 183 breached the Act by its picketing behaviour. No compensation is requested and we need not therefore consider it. In light of the construction industry context, and given that the facts strongly suggest that the employers would have signed the agreements in question (con­taining a clause exempting them for a time from the application of the "no subcontracting" clause) whether or not picketing occurred and regardless of the section 135 application, and given that the complainant has not established that the agreements interfere with any of its legal rights under the Act, we decline to interfere with the operation of those agreements at the request of the complain­ant.

47. In line with these comments, the only remedial relief will be this decision itself, which declares that Local 183 has breached the Act, as set out above.