Hickeson-Langs Supply Company v. Teamsters Local No. 419, 1991 CanLII 6063

[1991] OLRB Rep. May 636

0350-91-U Hickeson-Langs Supply Company, Applicant v. Teamsters Local No. 419 and Sam Scrivo, Gary Sloan, Ron Scott, Nick Tarasco, George Fyfe, Ian Quin, Dan Holland, Paul White, Armand Lamonday, Wayne Hebert, Gerry Dault and Clay Bowring, Respondents

BEFORE: R. 0. MacDowell, Alternate Chair.

DECISION OF THE BOARD; May 27, 1991

I

1. This is an application for reconsideration of a decision of the Board dated May 10, 1991 in which the Board found, inter alia, that: employees of the applicant company haye engaged in an unlawful "sympathy" strike; union officials supported or encouraged that unlawful strike;, and the union authorized the unlawful strike. The work stoppage occurred when employees who are mem­bers of Teamsters Local 419 refused to cross a picket line established at their place of work by other members of Local 419 who work for another employer at another location. The Board made a series of declarations and directions designed to bring the strike activity to an end and discourage its repetition. The respondents urge the Board to reconsider and revoke certain of those declara­tions and directions.

2. Section 106(1) of the Act reads as follows:

106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

In my view, section 106(1) gives the Board a plenary power of reconsideration even though the Board's orders have been filed in Court pursuant to section 94. I should note at the outset how­ever, that the respondents do not quarrel with the statement of law in Empress Graphics Inc., [1989] OLRB Rep. June 587 (application for judicial review dismissed in an unreported decision of the Divisional Court dated March 21, 1990), which the Board applied in the instant case. The respondents assert that the evidence did not support the Board's rulings, and that certain remedial directions were either unwarranted or beyond the Board's jurisdiction.

3. It will be convenient to deal with these submissions one by one. For ease of exposition, I will not repeat the evidence except as necessary to respond to particular items in the request for reconsideration.

II

Direction (6)

4. Board remedial Direction (6) reads as follows:

(6) the Board directs that the respondent union advise the members of Local 419 who are the employees of Oshawa Foods of this direction, and to draw to their attention sec­tion 70 of the Labour Relations Act which reads as follows:

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.

The respondents assert that Direction (6) should be revoked because:

"The lawful picket line that was at Hickeson-Langs has come down. The applicant did not seek a declaration that would encompass such a direction. [and] No useful labour relations purpose would be served by this direction".

5. Paragraphs 33 and 34 of the Board's decision read as follows:

33. The labour dispute with Oshawa Foods is still ongoing, and so is the picketing which precipi­tated the unlawful work stoppage. That unlawful work stoppage is also ongoing as at the com­pletion of the hearings. There is no basis for supposing that the picketing will stop, even though it might be regarded as "secondary" and therefore unlawful. As things now stand, there is no Court Order to limit or eliminate the picketing at the Fenmar Drive warehouse; and so long as the picketers are there, the respondents are likely to honour the picket line, as they have over the last few days.

34. Both before and throughout the course of this proceeding, the union has been urged to repu­diate the employees' actions and take steps to ensure adherence with the collective agreement. There is no evidence that it has taken any such steps, notwithstanding the company's urging and its own undertaking in the previous proceeding before the Board. There is, therefore, a reason­able basis for the employer's concern that, without a Board declaration and direction, the illegal job action will continue or will be repeated whenever pickets appear at the Fenmar location. Finally, there may still be some residual belief, among some employees, that Article 8.02 per­mits them to refuse to cross picket lines established at their own place of work. That is not the case, and the issuance of a declaration and direction may therefore have some educational effect foreclosing future illegal employee action, or, at the very least, putting employees clearly on notice that a continuation or repetition of such conduct may result in further legal proceedings with consequent civil or criminal sanctions.

6. Counsel's submission that the picketing has now stopped is not a "fact" established in evidence, nor a representation which I am prepared to give any significance. The fact is that in November 1988 the union undertook to "take reasonable steps to prevent unlawful strikes at the employer's Toronto Branch premises and to take reasonable steps to end unlawful strikes should strikes occur", and in late April 1991 the Secretary-Treasurer of Local 419 gave the company spe­cific assurances that no picketing would occur. The union and the employer both knew that if there was picketing by Local 419 members employed by Oshawa Foods, the Local 419 members employed by the applicant might respect those picket lines and engage in a sympathy strike. Yet despite that 1988 undertaking, those more recent assurances, and the commencement of these pro­ceedings, picketing did occur at the company's premises and did cause an unlawful sympathy strike. There is clearly no agreement or guarantee that it will not reoccur. Nor is it entirely accu­rate to describe this picketing as "lawful". That matter was not put in issue before the Board so that at this stage, one can only say, that there is no Court decision declaring the picketing to be unlawful "secondary" action, nor any declaration from this Board that the picketing is contrary to section 76(1) of the Act.

7. The picketers are not strangers to the respondent union or the respondent employees, and the applicant company is not an accidental or incidental target of their picketing. The picketers are themselves members of the respondent Local 419 whose support the respondent employees have sought in the past by picketing the Oshawa Foods premises. And there is a corporate connec­tion between Oshawa Foods and the applicant. These historical and institutional connections are an important subtext to the illegal strike that occurred, and warrant a direction that Local 419 advise both groups of its members of their rights and obligations under the Act.

8. Finally, it was part of the union's argument that workers were refusing to cross the picket line because of threats, intimidation, coercion, or a reasonable fear thereof. There was some basis for concern in isolated instances which might multiply if the respondent employees obey the law. That is why the company requested a direction that Local 419 (by notice or otherwise) advise all of its members of their obligations under the Labour Relations Act, and a reference to section 70 is included in Direction (6).

9. In the circumstances, the Board sees no reason to reconsider, vary or revoke Direction (6).

Direction (8)

10. Board Direction (8) reads as follows:

(8) the Board directs that the respondent Teamsters' Union 419 post copies of the Board's reasons for decision in prominent places where they will come to the atten­tion of all members of the local union; and without restricting the generality of the foregoing, in the union's offices, and on any employee bulletin board to which Local Union 419 has access at the premises of any employer with whom Local Union 419 has bargaining rights.

The respondent union complains that this direction extends notice of this proceeding to members of Local 419 who are not directly engaged in the work stoppage either as picketers or sympathetic strikers, and that therefore the direction is beyond the Board's jurisdiction.

11. I do not agree. As in the case of Direction (6), the underlying reasons for the Board's remedial direction are discussed in paragraphs 33 and 34 of the decision. Direction (8) is related to the pattern of unlawful activity established in evidence, the way in which that activity has arisen and the way in which it is likely to arise in the future if all members of Local 419 are not put clearly on notice of their rights and obligations under the Labour Relations Act.

12. There is an established and ongoing pattern of unlawful work stoppages involving Local 419, and an evident inclination by Local 419 members (or some of them) to picket the premises of employers other than their own, thereby precipitating unlawful sympathetic action. In that context, and in light of Local 419's previous assurances and undertakings, the Board determined that a more specific and concrete step was required: a specific direction to post the Board's reasons (in­cluding its statement of the law) in prominent places where it would come to the attention of all members of Local 419. No remedy was sought against those other members of Local 419 who are not respondents herein; however, in my view, this posting obligation on the part of the union respondent is entirely appropriate where it has authorized an unlawful strike, its officials have encouraged, promoted or participated in an unlawful strike, some of its members have engaged in an unlawful strike, and other members in another bargaining unit have engaged in picketing activ­ity which prompted that unlawful strike. It remains to be seen whether this direction will have the desired prophylactic effect. At the very least, the employees will be put on notice of the legal framework in which their rights will be determined.

Direction (4)

13. Direction (4) reads as follows:

(4) the Board directs that all of the respondents (excluding employees Holland and Hebert) refrain from any act which they know or ought to know will prompt other persons from engaging in an unlawful strike;

Local 419 submits that the evidence does not establish that it "authorized" the collective work refusal of the respondent employees.

14. The evidence established:

• there was an unlawful work stoppage in 1985 involving some of the Local 419 officials (stewards) named herein;

• there was a work stoppage in 1988 in which the union undertook inter alia to "take reasonable steps to end unlawful strikes should such strikes occur";

• the company made it clear to its local officials (stewards) that they were obliged to work as scheduled and take steps to ensure that other members did the same;

• the company sought and received from the Secretary-Treasurer of Local 419 specific assurances that there would be no problems in 1991 in the event of a lawful strike involving Local 419 members working at Oshawa Foods;

• despite those assurances and undertaking, there was a sympathy strike at the company's premises;

• local union officials (stewards) threatened the strike;

• local union officials (stewards) encouraged and supported the strike;

• local union officials (stewards) participated in the strike;

• Local 419 had notice of the picketing, notice of the sympathy strike, and notice of these proceedings which were before the Board for sev­eral days and during which the company again urged the Local to take steps to end the strike;

• there is no evidence that any union official took any steps of any kind to disavow, repudiate or rectify the actions of the Local 419 stew­ards, or to advise those stewards or anyone else that a work stoppage at this time was unlawful.

15. A trade union is an artificial legal entity which can only act through its officials (or per­haps by the unanimous resolution of its membership), and the mere occurrence of an unlawful work stoppage does not establish or imply union authorization or approval. Indeed, even the pres­ence of a union officer in the midst of the strikers, may not, in itself, establish union complicity. Thus in Steinberg Inc. (Miracle Food Mart Division) & Teamsters Local 419, [1982] OLRB Rep. Sept. 1366, the Board was not persuaded that the then president of Local 419 had supported or encouraged an unlawful strike even though he was clearly on the scene and involved in a dialogue with the unlawful strikers. The Board concluded that he was there in an effort to resolve the strike, not encourage or prolong it.

16. On the other hand, the arbitral jurisprudence establishes that a union is ordinarily responsible where stewards instigate, encourage or actively participate in unlawful activity, and a union has an affirmative obligation to attempt to end the strike. In Re Polymer Corporation Ltd., (1958) 59 CLLC ¶18,158 Professor Laskin, as he then was, concluded that:

"The essential thing was to show official disassociation from the unlawful strike by separating union functionaries from demonstrators".

In International Longshoreman's Association Local 273 et al v. Maritime Employers' Association et al, 78 CLLC ¶14,171 the Supreme Court of Canada put it this way:

"The language of the contract placed an affirmative duty on the union acting through its leaders at all levels of the organization so as to reveal an intent through appropriate overt acts to abide by and to promote the terms of the Collective Agreement. The evidence on the record in these proceedings is quite the opposite. Not only is there no evidence of any action on the part of the union through its agents, that is its officers, to perform the undertaking given in the articles set forth above [the no strike clause], but, on the contrary, the leaders of the Locals themselves failed to respond to the request by the Association [the employer] to report for work".

Where, as here, union officials have actively supported, encouraged and participated in the unlaw­ful strike activity and all the other evidence (including total inaction) suggest union acquiescence and approval, there is a reasonable inference that the strike was "authorized" by the union.

17. There is no reason to reconsider paragraph 27 of the Board's decision, or Declaration (4).

Declaration (3)

18. Board Declaration (3) reads as follows:

(3) the Board declares that all of the named respondents (with the exception of employ­ees Holland, Hebert and Lamonday) have done acts which they know or ought to have known would, as a probable and a reasonable consequence, prompt other per­sons to be engaged in an unlawful strike contrary to section 76(l) of the Act;

The union raises a legal challenge to this declaration insofar as it purports to apply to Local 419. The union submits that Local 419 is not a "person" within the meaning of section 76(1); and, accordingly, there can be no breach of this section even if it did acts which it knew would create a strike (i.e. by "authorizing" that strike, or by its officials' counselling, procuring, supporting, encouraging or engaging in the strike). The union relies on the decision of the Board in Consolidated Bathurst Packaging Ltd., [1982] OLRB Rep. Sept. 1274, where it is said:

"Section 76 cannot be breached by a trade union in that it directs that "no person shall" and, in the context of this legislation, the term "person" is not a reference to a trade union".

19. At the hearing, the union did not dwell on the precise elements of section 74 or section 76, nor did the union draw the Board's attention to Consolidated Bathurst. The focus of the union's argument was its contention that there was no strike at all because the work stoppage was the product of individual employee decision-making (see paragraph 2 of the Board decision). How­ever, Consolidated Bathurst is a clear and relatively recent statement of the law, a trade union is not a "person" at common law, and when sections 76(1) and 74 are read together, the actions of "persons" are distinguished from those of "unions" and union officials (although, of course, union officials are "persons" too). I am persuaded, therefore, that Declaration (3) is overly broad in its reference to "all of the named respondents". Declaration (3) is therefore revoked, and the follow­ing substituted therefor:

(3) the Board declares that all of the named respondents (with the exception of employ­ees Holland, Hebert, and Lamonday, and the respondent union) have done acts which they know or ought to have known would, as a probable and reasonable conse­quence, prompt other persons to engage in an unlawful strike contrary to section 76(1) of the Act.

For the purpose of clarity, I should note that this declaration therefore includes both union officials who encouraged, supported or participated in the unlawful strike and any employees who did the same. Their refusal to work may have been the product of a common understanding, group con­sciousness, and "union solidarity", however, it had the effect of encouraging everyone to adhere to this common rule, and engage in an illegal sympathy strike.