[1989] OLRB Rep. June 537
0269-89-U The Art Gallery of Ontario, Applicant v. Ontario Public Service Employees Union, Ontario Public Service Employees Union Local 535, Ted Loughead, Ed Gorley, Ruth Jones, Carla Roth, Karen Heffernan, Sharon McGill, Elizabeth Khera, Michael Douglas, Mary Greta, Kerry Kim, Catherine Spence, Jill Cate, Gisela Navia, Bud Johnston, Claira Hargitay, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair.
APPEARANCES: John Brooks and Mary Beth Currie for the applicant; Ian Roland, David Wright and Ted Lou ghead for the respondents.
DECISION OF THE BOARD; May 30, 1989
For reasons which follow, this application for declarations and directions under section 92 of the Labour Relations Act was dismissed orally after a hearing on April 28, 1989.
There was no dispute of substance with respect to the facts material to the application.
At the instance of the respondent trade union, (and those of its representatives who are respondents), some employees of the applicant who are in a bargaining unit represented by the respondent trade union picketed in front of the applicant's premises at 317 Dundas Street West, Toronto, on April 26, 1989. They also intended to picket there during the evening of April 28, 1989 in conjunction with a fund raising event being held by the applicant. The majority of those picketing on April 26, 1989 carried signs complaining about the adequacy of the applicant's monetary offer in the then ongoing collective bargaining between the applicant and their bargaining agent, the respondent trade union. It was common ground that the applicant and the respondent trade union were in the conciliation process at all material times, and that the respondent trade union was therefore not in a legal strike position with respect to the applicant.
On the evidence and agreed facts before me, I was satisfied that, with the exception of the respondent Gorley, those respondents who were employees of the applicant engaged in the picketing complained of solely during their unpaid lunch breaks. The intended picketing on April 28, 1989 would be by persons other than employees scheduled to be at work. I was satisfied that that part of Gorley's involvement in the picketing which exceeded his lunch period was minimal in extent and did not, on the evidence before me, have any intended or apparent impact on the applicant's operations. I was also satisfied that the picketers did not attempt to persuade any one to not enter or to not do business with the applicant. Indeed, they actively encouraged any persons having business with the applicant or wishing to enter the applicant's premises to do so. The evidence indicated that both patrons and other persons wishing to enter the applicant's premises did so. There is no evidence that any- one did not enter or attempt to enter the applicant's premises because of the picket line.
The applicant relied upon a provision in the collective agreement between it and the respondent trade union (which though expired, the applicant submitted was still in effect by operation of the "freeze" provisions in the Labour Relations Act) which provides that:
ARTICLES STRIKE OR LOCKOUT
5.01 The Gallery agrees that there will be no lockout of employees, and the Union agrees that there will be no strike, picketing, or other interference with the operation of the Gallery. The words "strike" and "lockout" shall bear the meaning given them in the Ontario Labour Relations Act.
Further, submitted the applicant, the intended and actual effect of the picketing was such that the actions of the respondents constituted a breach of the Labour Relations Act in any event. In that respect, the applicant asserted that any picketing carried on by a trade union (or its members) when it is not in a legal strike position is unlawful per se.
The respondents argued that the picketing was informational and that such picketing is not prohibited by the Labour Relations Act. They submitted that there was no evidence of subjective design or objective effect such as to justify a finding that a strike had occurred.
In my view, any issue with respect to an alleged breach of a collective agreement is a matter for arbitration and, since it was not disputed that the respondent trade union was not in a legal strike position, was irrelevant to my considerations in any event. Similarly, the alleged breach of section 79 was not material to the application before me either. The issue before me was whether the respondents had engaged in conduct contrary to the Labour Relations Act; namely, activity which constituted or threatened an unlawful strike, or which resulted or was likely to result in an unlawful strike.
The Labour Relations Act recognizes the right to strike. However, that right does not exist during the term of collective agreement or before the conciliation process established by the Act has been exhausted. Section 1(1)(o) of the Act defines a "strike" as something which:
includes a cessation of work, a refusal to work or to 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;
"Picketing", "picket", and "picket line" are terms which are not specifically mentioned in the Labour Relations Act. Nor is picketing, within the common meaning of that term, associated exclusively with labour relations matters (witness, for example, the picketing of various abortion clinics in recent years). However, picketing in this country has long been associated with trade union solidarity and strike activity. Where a lawful strike is in progress, employees are entitled to engage in peaceful picketing of their employer's business. Most such picketing is designed to induce the public or persons doing business with the employer to not have dealings with it and thereby bring economic pressure to bear on the employer. In Canada, picketing is a traditional method employed by workers to publicize disputes with their employer and to attract support for themselves in that respect.
Virtually any form of picketing provides information and has an element of expression in it. A common part of that expression is a suggestion to others that they not do business with the person being picketed. In support of its submissions, the respondent relied upon the Supreme Court of Canada decision in Retail, Wholesale & Department Store Union, Local 580, et al. v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; (1986) 33 D.L.R. (4th) 174. I note that that case, unlike this one, involved secondary picketing. Further, and with great respect to the Supreme Court of Canada's obiter comments in that respect, it would be, as this case demonstrates, too much of a generalization to say that all picketing is designed to put economic pressure on the person picketed and to cause economic loss to him for so long as the object of the picketing remains unfulfilled.
It is clear that the motivation for threatening or engaging in an unlawful strike (in the sense of the ultimate goal of those involved with it) is irrelevant (see Domglas Ltd., [1976] OLRB Rep. Oct. 569; application for judicial review dismissed 78 CLLC ¶14,135 (Div. Ct.); Monarch Fine Foods Company Limited, [1986] OLRB Rep. May 661). However, in order for a strike to exist at all within the meaning of the Labour Relations Act, there must be concerted employee activity designed to restrict or limit output.
The mere existence of picketing by employees will almost always amount to concerted activity by them. While it may be, having regard to the ejusdem generis doctrine, that not all picketing by employees will constitute "concerted activity" within the meaning of section 1(1)(o) of the Act, it was not argued before me that the picketing in this case did not amount to such concerted activity. In any case, the existence of picketing will not, by itself, mean that a strike is in progress or is likely to result. In order for a strike to exist there must be some concerted activity which was designed to restrict or limit output. (See, for example, Horton CBI, Limited, [1985] OLRB Rep. June 880, where the Board prohibited picketing because it was designed to and did out economic pressure (by restricting and limiting its output) on the employer to change an assignment of work, not because of the informational component of the picketing). Consequently, the motivation for picketing (in the sense of its purpose) may be relevant to the issue of whether or not it constitutes an unlawful strike or other unlawful conduct. (See Bay Tower Homes Company Ltd., [1988] OLRB Rep. March 259).
While picketing is often identical to a strike, it is not always so. The Board's mandate is to enforce the prohibition in the Labour Relations Act against unlawful strikes and any picketing which is incidental to them. The Act does not authorize the Board to restrain or restrict picketing which is not connected with unlawful conduct. Consequently, the question which the Board must address is not whether there is picketing occurring during the effective period of a collective agreement or before the conciliation process has been exhausted, but rather whether or not the conduct complained of (in this case the picketing) is prohibited by the Act.
In this case, there was no evidence that the picketing engaged in (and threatened) was designed to or did have any impact on the applicant's output or business. On the contrary, the evidence established that persons having dealings or wishing to deal with the applicant were encouraged to and did do so. Nor did the evidence establish either that there was any cessation of work or refusal to work or continue to work, or any threat in that respect by the employees. In the result, the picketing complained of neither constituted nor was in connection with an unlawful strike. Nor was I satisfied that any unlawful strike had been authorized, threatened, counselled, procured, supported or encouraged. Accordingly, there was no breach of any of sections 92, 74 or 76 of the Act and the application was dismissed.