[1989] OLRB Rep. September 969
0419-89-U Guild Electric Limited, Applicant v. International Union of Operating Engineers, Local 793, John Monti, Joseph Kennedy, Mr. Montagnese, Mr. Ricciuto, Respondents v. IBEW Construction Council of Ontario, Intervener
BEFORE: Ken Petryshen, Vice-Chair.
DECISION OF THE BOARD; September 6, 1989
This is an application filed pursuant to section 135 of the Labour Relations Act.
This matter came on for hearing in May 1989. The Board reserved its decision and in a written decision dated May 19, 1989 dismissing the application, the Board wrote as follows:
The applicant alleges that on May 4, 1989 a representative of the respondent union, Mr. Monti, threatened a project manager of a general contractor with a picket line which would have had the effect of causing an unlawful strike. On the evidence before it, the Board is satisfied that Mr. Monti made the threat on May 4, 1989 as alleged by the applicant. However, in exercising its discretion in the particular circumstances of this case, the Board finds that the applicant and the intervener are not entitled to the relief they requested in this application. The Board's reasons for its decision will follow in due course.
The Board's reasons for dismissing the application are as follows.
In support of its application, the applicant called two witnesses. Mr. A. Jordan is a project manager for The Foundation Company of Canada Limited ("Foundation"). Mr. G. Docherty is the applicant's Operations Manager. In making its findings of fact, the Board considered the testimony of these two witnesses, the documentary evidence and the submissions of the parties relating thereto.
The applicant is an electrical contractor that frequently performs groundside road work and related services in Ontario. Most of the applicant's work is obtained by tender from general contractors and is performed in the Toronto, Hamilton and Golden Horseshoe areas. The applicant has approximately 450 employees and performs the work it obtains with its own employees. The applicant is bound to the IBEW'S provincial agreement and to the Provincial Linework Agreement between the Electrical Contractors Association of Ontario and the IBEW Construction Council of Ontario. The applicant does not have a collective bargaining relationship with the respondent, except in Board Area #26.
During April and May of 1989, the applicant was engaged in performing certain work at the Pearson International Airport, Terminal 3 project ("airport project") and at the Skydome project. Foundation is a general contractor on the Airport project. The applicant obtained three contracts for work at the airport project that are relevant for our purposes. One contract is with Bot Quebec Limitee ("Bot") and the other two are with Dufferin Construction Company ("Dufferin"). On the Skydome project, the applicant was granted a contract by G. M. Gest Company ("Gest"). Part of the work of these contracts involved the operation of excavating equipment to install electrical conduits. The applicant used its own employees, members of the IBEW, to perform the excavating work.
The respondent was not happy with the fact that the applicant's employees are operating the excavating equipment at the projects referred to above. The respondent takes the view that the operation of such equipment is the work of its members. To a certain extent, the evidence suggests that the respondent has mounted a campaign to prevent the applicant's employees from engaging in excavating work on certain projects. Representatives of the respondent objected to the applicant performing the excavating work without its members to the general contractors at the projects with whom the respondent has a collective bargaining relationship. For instance, representatives of the respondent had discussions with a representative of Foundation, a company bound to the respondent's provincial agreement, concerning the excavating work performed by the applicant pursuant to its contract with Bot. In their discussions with general contractors or those contractors who subcontracted work to the applicant, the respondent's representatives strenuously argued that the subcontracting clauses of its provincial agreement were being contravened when other than its members performed excavating work. Given the evidence, it is probable, as suggested by counsel for the applicant, that representatives of the respondent will continue to exert pressure where it is possible for them to do so in order to prevent the applicant from engaging in excavating work with members of the IBEW.
It is unnecessary to detail the evidence concerning the nature of the pressure exerted by the respondent and the way in which the problems were resolved with respect to two of the applicant's contracts, namely the Gest Contract at the Skydome project and the Bot contract at the airport project. Suffice it to say that the parties involved in those contracts managed to resolve the problem or agreed to a method for resolving the problem and that there is no evidence to suggest, nor was it argued, that the respondent's conduct in relation to these two situations contravened the Act. The allegation by the applicant of illegal conduct on the part of the respondent arises in connection with the applicant's contracts with Dufferin at the airport project.
On May 4, 1989, J. Monti, a representative of the respondent, had a brief, informal meeting with Jordan that had not been pre-arranged. Monti advised Jordan that a jurisdictional problem existed on the site since the applicant had electricians operating excavating equipment. As noted in its decision of May 19, 1989, the Board is satisfied that during this conversation, Monti told Jordan that a picket line would be established if the problem was not resolved. The Board is prepared to assume that the threat to establish a picket line in these circumstances constitutes a threat of an illegal strike. Since Monti wanted Foundation to resolve the problem, Jordan told Monti that he would send a letter to Dufferin. Jordan did send a letter to Dufferin dated May 4, 1989, in which he essentially advised Dufferin of its contractual obligations as well as of the respondent's complaint and directed Dufferin to correct the matter immediately. There is no reference in this letter to Monti's threat to set up a picket line. Subsequent to Monti's discussion with Jordan, Dufferin cancelled the excavation work from the applicant's contracts. Representatives of the respondent had another discussion with Jordan shortly after the first one in which Monti apologized to Jordan for what he had said previously and implied that he did not mean what he said.
The Board was asked to find as a fact that Monti's threat to Jordan resulted in the cancellation of the excavating part of the applicant's contracts by Dufferin. Jordan testified that he understood that Monti left him after their first discussion and went to talk to representatives of Dufferin. There is no direct evidence that the respondent's representatives did communicate with Dufferin representatives, let alone what they said to them if they did meet. Apart from his sending the letter, there is no evidence that Jordan discussed Monti's threat with Dufferin. Docherty gave some hearsay evidence concerning what a Dufferin representative said to him while advising him that the applicant would no longer perform the excavation work. No one from Dufferin was called to give evidence. Although the Board does draw certain inferences in picket line situations, as suggested by counsel for the intervener, the Board is not prepared to draw the inference, based on the evidence before it, that Dufferin acted towards the applicant in the way it did as a result of Monti's threat. Such a casual link cannot be made on the basis of Docherty's hearsay evidence and with the absence of any direct evidence from Dufferin as to why it removed the excavating work from the applicant's contract.
Counsel for the respondent argued that the applicant in these circumstances should have applied under section 91 of the Labour Relations Act and that the Board should not entertain an application made under section 135 of the Act. Although a dispute over the performance of work may be at the heart of the dispute, an applicant can still proceed with a section 135 application in order to obtain certain relief. This position is well settled in the Board's jurisprudence.
The applicant, with the support of the intervener, argued that Monti's threat to set up a picket line in his brief discussion with Jordan on May 4, 1989 constituted a threat of an illegal strike which should be remedied as follows:
(a) the Board should grant a declaration that the respondent trade union and Monti threatened an unlawful strike;
(b) the Board should make certain directions against the respondents; and,
(c) the Board should remain seized with the issue of damages flowing from the illegal threat.
A request for damages in the context of a section 92, section 93 or section 135 application is inappropriate. Illegal strikes and lockouts are serious matters that require a quick remedial response. This is reflected by the Act's provisions and the Board's procedures for dealing with such applications expeditiously. The essential feature of these provisions, which is clear from their wording, and the Board's practice, is to address the illegal conduct and bring it to an end. In applications of this type, the Board does not attempt to remedy all of the consequences of the illegal activity. In addition to the wording of these provisions and the manner in which the Board has traditionally exercised its remedial discretion, the presence of section 95, which provides a procedure which a party can utilize to secure damages, is further support for the proposition that, at least as a matter of discretion, the Board should not deal with the issue of damages or reserve with respect to this issue on an application under section 135 of the Act. The Board recognizes that section 95 is not available to a party threatened with an illegal strike and incurring damages as a result thereof. However, section 89 of the Act is available to such a party and it is preferable that that procedural provision be used to secure damages for the reasons set out above. Accordingly, the Board did not find it appropriate to retain jurisdiction to deal with damages as requested by the applicant.
The applicant requests a declaration and directions from the Board on the basis of a single threat by Monti to set up a picket line. The applicant argues that it is entitled to this relief since it is likely that the respondent trade union will continue its pressure in an attempt to ensure that the applicant does not perform excavating work with electricians. Although it is likely that the respondent trade union will continue to pressure entities which it has a bargaining relationship with in order to prevent the applicant from engaging in excavating work with the intervener's members, there is nothing illegal about conduct which is motivated by an attempt to enforce collective agreement rights as long as the conduct does not consist of illegal strikes or threats to engage in such activity. The evidence disclosed that the respondent trade union exerted pressure with respect to two contracts without engaging in illegal activity. Monti's threat to Jordan was an isolated incident. There is no evidence that representatives of the respondent threatened to set up a picket line on any other occasion in connection with work performed by the applicant. Shortly after making the threat, Monti apologized to Jordan. In exercising its discretion to grant relief under section 135 and similar provisions, the Board will most often refuse to give relief once the strike is over. There is no history of illegal strikes or threats to engage in illegal strikes by representatives of the respondent and it appears unlikely that the conduct will be repeated. The Board was satisfied on the evidence that Monti's threat was an isolated one, and that it was unlikely in the circumstances that other threats of a similar nature would be made. It was for these reasons that the Board determined it would not exercise its discretion to grant the requested relief and dismissed the application.