[1990] OLRB Rep. June 648
0653-90-U Horton CBI, Limited, Applicant v. Leo E. Evans, Joe L. Da Silva, Terrance R. McGuire, and Sanford Jones, Respondents v. The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local 128, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair.
APPEARANCES: Donald B. Francis and Bruce Wallace for the applicant; M. A. Church, Terry McGuire, Sanford Jones and Joe Da Silva for the respondents; M. A. Church and Steve Silversides for the intervener.
DECISION OF THE BOARD; June 11, 1990
At the hearing of this application, "The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local 128" was added as an intervener in these proceedings.
This is an application, under section 135 of the Labour Relations Act, in which the applicant alleges that the respondents have engaged in conduct which constitutes an unlawful strike. Upon considering the material facts, which were not in dispute, and the representations of the parties, the Board, orally and at the hearing:
a) declared that the respondents have engaged in an unlawful strike, contrary to the provisions of the Labour Relations Act by refusing to cross the picket line established by The International Brotherhood of Electrical Workers, Local 402;
b) directed the respondents, and anyone having notice or knowledge of the declaration and directions herein, to cease and desist from engaging in any unlawful strike activity with respect to the applicant;
c) directed that all persons having notice or knowledge of the declaration and directions herein cease and desist from counselling, procuring, supporting, encouraging, or threatening any unlawful strike with respect to the applicant;
d) directed that the respondents and anyone having notice or knowledge of the declaration and directions herein cease and desist from performing acts which they know or ought to know will, as a probable or reasonable consequence thereof, cause or result in an unlawful strike with respect to the applicant;
e) directed the Registrar to give notice of the declaration and directions herein to The International Brotherhood of Electrical Workers, Local 402 by sending a copy of this decision to it, and further directed The International Brotherhood of Electrical Workers, Local 402 to give notice of the declaration and directions herein to its members forthwith upon the receipt thereof.
The Board gave brief oral reasons for its decision as aforesaid at the hearing as follows.
The material facts were not in dispute. In essence the respondents and intervener accepted as correct the allegations completed in the application as supplemented by counsel at the hearing. They also candidly conceded that these facts established the existence of an unlawful strike with respect to the applicant. However, they argue that the respondents actions were, in the circumstances, justified, and that the Board should exercise its discretion to not make any directions or orders with respect thereto.
The facts upon which the respondents and intervener rely were not disputed by the applicant. The International Brotherhood of Electrical Workers, Local 402 (the "IBEW"), which is in a legal strike position with respect to work in the industrial, commercial and institutional sector of the construction industry in Ontario, first established a picket line at what is presently the only construction entrance to the Canadian Pacific Forest Products Newsprint Modernization Project (the "Project") in Thunder Bay and on which the applicant is a subcontractor, in May, 1990. This picket line was taken down after a few days on the understanding, which is a common one in such circumstances, that the work of electricians would not be done on the Project. Subsequently, the general contractor and owner of the Project decided to speed some of the work on it up and reactivated a crane which had been used by members of the IBEW to do their work. It is not apparent that any electricians work was (or is) being done as a result (certainly neither the applicant nor the respondents were involved in doing any) but the IBEW reacted to this by re-establishing the picket line. This picket line was sporadic at first but has been up consistently since May 22, 1990. Since May 22, 1990, the picket line has grown increasingly militant and persons, including the respondents, who have sought to cross it have been threatened with harm to their persons or property. The respondents, who are members of the intervener, have attempted, at the urging of the intervener, to cross the IBEW picket line, but have thought it prudent not to force the issue in the face of the threats directed against them both at the picket line and elsewhere. In the result, they have not reported for work as scheduled by the applicant. In that respect, it is worth noting that Thunder Bay is a "union town" and a relatively small community in the sense that members of the various of the construction trade unions tend to know each other.
Although counsel for the respondents and intervener conceded that the Occupational Health and Safety Act R.S.O. 1980 Chapter 321 had not been formally invoked, he urged the Board to accept that the respondents had not reported for work because they had reason to believe that they would endanger themselves if they did, or attempted to do, so and that by analogy to the Occupational Health and Safety Act their actions were therefore justified.
I gave careful and serious consideration to the representations of the respondents and intervener. However, while it may be that there are circumstances in which the Board will decline to issue the usual cease and desist directions even though an unlawful strike exists, I was constrained to conclude that it was not appropriate to refrain from doing so in this case.
Strikes and picket lines are not tea parties. Emotions run high in such situations. They give rise to enormous tensions between people, particularly in circumstances where some people are engaged in a lawful strike and others, who know them and who have some sympathy for their position, are not. However, as counsel conceded, the sorts of things which have been said on the IBEW picket line (and elsewhere) in this case are not uncommon on construction picket lines. Notwithstanding that, actual violence on picket lines continues to be the exception rather than the rule. While I in no way belittled the concerns of the respondents, I found nothing in the facts before me which would justify their actions in a legal sense or which made it appropriate to not grant the relief sought. In the circumstances, I did, however, find it appropriate to try to ensure that notice of the Board's determinations herein came to the attention of the IBEW and its members.
Finally, I observe that this application illustrates the wisdom of the Sarnia Construction Association, [1982] OLRB June 922 approach to situations in the construction industry where striking employees are picketing the job site on which other employees are not in a legal strike position, and where the work of the striking employees is not being performed and the employers being adversely affected are not connected with the negotiations relating thereto. Though criticized by some, this approach has served the construction labour relations community well and has been generally accepted by it.