[1992] OLRB Rep. April 489
0043-92-U; 0045-92-U Teamsters Local 230, Ready Mix, Building, Supply, Hydro & Construction Drivers, Warehousemen & Helpers of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Complainant v. Angelo Natale and Lorenzo Borrelli, Respondents; Teamsters Local 230, Ready Mix, Building, Supply, Hydro & Construction Drivers, Warehouse-men & Helpers of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Complainant v. Ontario Aggregate Haulers Benevolent Association and Lorenzo Borrelli, Respondents.
BEFORE: K. G. O'Neil, Vice-Chair.
APPEARANCES: David McKee and Frank Marrano for the complainant; A. Natale, Irene Lauria and Lorenzo Borrelli for the respondent.
DECISION OF THE BOARD; April 16, 1992
The names of the respondents in Board file 0043-92-U have been amended to remove the reference to Ontario Aggregate Haulers Benevolent Association and to add Angelo Natale as a respondent.
This decision concerns an application for relief under section 94 [formerly section 92] of the Act based on allegations that the respondents have violated section 78 [formerly section 76] of the Act. The Board's decision of April 8, 1992 dismissed the complaint, after an expedited hearing, with further reasons to follow. These are the Board's full reasons.
The complaint in summary is that the respondents by setting up a picket line at an excavation site performed acts which they knew or ought to have known would have the reasonable and probable consequences that others, i.e. employees at the site, would engage in an unlawful strike. The respondents reply that neither they nor the association they represent is a trade union, and the complaint should be dismissed on that basis. Further, they assert that their activities were in the nature of a demonstration which is not prohibited by the Act. The following findings of fact are made on the basis of the evidence given by Julian Basso, General Manager of D'Orazio Drain and Watermain Company Limited (D'Orazio) and Frank Marrano, a Teamsters Business Agent. No evidence was called by the respondents.
The complainant (the Teamsters) and D'Orazio are bound by a collective agreement. Operating under the name D'Orazio Excavating Contractors Inc., D'Orazio currently employs truck drivers covered by the collective agreement with the Teamsters to haul material from an excavation site near Jane St. and Highway 401 (the job site). Material is also hauled from this job site by trucks driven by people who are not D'Orazio employees, presumably on a contract basis. Applicant's counsel said that no one doing the acts complained of is in any employment relationship with D'Orazio.
Messrs. Natale and Borrelli, the respondents, are representatives of The Ontario Aggregate Haulers Benevolent Association (the Association), a corporation without share capital. It was undisputed that one of the purposes of the Association is to prevail upon contractors to pay more to owner/operators to enable them to better cover their own costs. Evidence established that, sometime in mid-March, 1992, D'Orazio's General Manager, Julian Basso, had a conversation with the Association's Ms. Lauria in which he was asked to sign a letter of intent committing to pay a higher rate to owner/operators than he was willing to pay. He informed her that he wanted the freedom to call whomever he wanted and that he would only pay the higher rate if everyone else in his position would pay it. She urged him to treat the drivers better and suggested he approach the party with whom he had his contract for the excavation work and ask for more money for the "drivers", but did not threaten him with a strike. There was no evidence that D'Orazio was in any contractual relations of any kind with the Association or any of its members. Mr. Natale stated at the hearing that the Association's members intended to refuse to work on the D'Orazio site until the company agreed to better rates.
On Thursday, April 2, Basso arrived at the job site and saw a police car and ten or fifteen people leaving the site. He saw no signs and gave no evidence of any other activity on that day. On Monday, April 6, late in the afternoon, Basso was again at the job site but saw no activity with reference to the Association~ and specifically said he saw no sign that said "On Strike".
Frank Marrano, Business Agent for the Teamsters, was also at the job site on Monday, April 6, starting at approximately 6:30 a.m., before work started shortly after 7:00 a.m. He observed a number of trucks belonging to D'Orazio, which would be driven by Teamsters. Also on site was a Santino Brothers truck and two trucks owned by Quinte Caponecchia. At approximately 8:00 a.m., people whom he did not recognize started to show up on the sidewalk outside the north gate to the site. Marrano testified that the people on the sidewalk walked back and forth in front of the gate when trucks were going in and out of the site. Later on in the day, around early afternoon, he saw Natale and Borrelli there. Natale was passing papers to the men at the south gate, Marrano said, but there is no evidence as to what was on the papers. At the north gate, at one point, Natale was out of his car standing on the street.
When Marrano was leaving the site to make a phone call at one point he saw Borrelli's car stopped while he talked to people on the sidewalk. Marrano had to drive up on the sidewalk a bit to get past Borrelli's car. There was no truck behind Marrano at that point. He could not say if Borrelli ever turned off the engine or got out of the car. Marrano saw up to seven or eight people at the north gate and somewhat more at the south gate at one point. He recognized some people as owner/operators.
Marrano said trucks were delayed by the people on the sidewalk "sometimes 3 minutes" and that he timed one at almost 10 minutes. He saw no signs, and said he did not see anyone talking to the drivers on the Monday. He said that if it was a D'Orazio truck at the head of the line going in or out, they were not being stopped. Rather, people on the sidewalk were trying to stop or delay the Santino Brothers and Caponecchia trucks. If there were D'Orazio trucks behind the others, however, their departure or entrance was also delayed, as there was no room for them to get by. The evidence did not detail how many times, or for how long any D'Orazio truck was delayed.
Quinte Caponecchia, driving one of his own trucks, was one truck driver Marrano identified as being stopped. Caponecchia's other truck on the site was driven by his one employee. Caponecchia is also a Teamster.
On Monday afternoon, Marrano said two (possibly more) empty dump trucks circled the block on which the site is located. They stopped on the street on the south side of the site and the two drivers got out and talked to each other, but Marrano has no idea what they said. He observed the trucks in the area of the job site for approximately one and a half hours. He did not see them block any entrance or exit to the site (as had been pleaded).
On Tuesday, April 7, 1992, Marrano attended at the job site again at approximately 7:35 a.m. There were people on the sidewalk at the south gate on what Marrano referred to as the "so-called picket line", but he saw no signs or other form of identification. There were 5 to 6 people at first and by 11 a.m., approximately 25 people. Later on in the morning, there were also people on the north gate.
In addition to the trucks that had been on the site on Monday, Marrano saw two trucks from London Excavating Co. on the site on Tuesday. The driver of one of those trucks on that day is also a Teamster but not a D'Orazio employee. Marrano said that the activity by the people on the sidewalk was the same as on Monday, i.e. D'Orazio trucks were not stopped, but the other trucks were. Later on he said that there was no stoppage of trucks, but delay. He overheard someone on the sidewalk say the words "$50 an hour" at one point. This is the rate the Association is seeking to have contractors pay owner/operators. There was no evidence as to the content of any conversations with the drivers whose trucks were stopped or delayed. On Tuesday, there were up to 25 people near the south gate at one point.
Marrano testified on cross-examination that the trucks leaving the site took in the vicinity of an hour to get to the dump with the material they were hauling, more or less, depending on a variety of factors, including traffic. He said it takes under 5 minutes to load a truck at the site. On Monday and Tuesday, the trucks were being loaded by a backhoe.
The Teamsters have approximately 590 members who own their own trucks and operate as owner/operators. When the union is asked to supply owner/operators, it does if there are "enough trucks on the list", in the words of Mr. Marrano. There are currently approximately 60 owner/operators on the list for whom there is no work.
There were various issues mentioned or alluded to during the course of the hearing which are unnecessary to decide in order to dispose of the application. Therefore I will not set out the comments made by both sides. However, these issues include the potential status of the Association as a trade union, the correct collective agreement to cover the job in question, the nature of the Teamsters' obligations and/or jurisdiction over any owner/operators who are not dependent contractors, their meeting with owner/operators and the Teamsters' status to bring this complaint.
Applicant counsel argued that were the Association a trade union, this would clearly be an illegal recognition strike, aimed as it is at getting recognition and an agreement from D'Orazio. He argued that Natale's opening statement made the association's purpose clear in saying "we will stay away from work until there is an agreement to pay" certain rates. Given that purpose, counsel asserts that the purpose of the activity at the site was to induce people to stay away from work. He asks the Board to conclude that these were acts designed, even if unsuccessfully on the occasions in evidence, to get people to stay away from work until D'Orazio concluded an agreement with the association.
Counsel cited numerous cases, all of which have been considered. These were Domglas Ltd., [1976] OLRB Rep. Oct. 569, United Brotherhood of Carpenters and Joiners, [1978] OLRB Rep. Aug. 776, Sarnia Construction Association, [1982] OLRB Rep. June 922, Toronto Transit Commission, [1984] OLRB Rep. Dec. 1781, Art Gallery of Ontario, [1989] OLRB June Rep 537, Bay-Tower Homes Company Ltd., [1988] OLRB Rep. Jan. 4 and March 259 and Horton CBI, Limited, [1985] OLRB Rep. June 880.
In distinguishing the Art Gallery case, applicant's counsel argued that unlike the art gallery employees who picketed on their own time and urged people to go into the gallery and tell people they agreed with them, in the case before us, the Association wanted people to stay away from work. The practical consequence of their activities was to directly slow down the work on the site of the employees of Santino Brothers, Caponecchia and London Excavating, and indirectly that of employees of D'Orazio. He urged the Board to find that the facts of this case were much closer to Horton CBI, supra, where the Ironworkers picket line was recognized as what it is in the construction industry - an invitation to stay away from work. Counsel argues that if the people on this site had done what they were asked to do by the Association's people, they would have stayed away from work. In his submission, this means that the reasonable and probable consequence of their activities would be an unlawful strike by others. To the extent that employees are willing to stay and talk to the association's people it will slow down and restrict output. The quantity of any delay should not be determinative.
For the respondents, Mr. Natale asked that the matter be dismissed because the Board has no jurisdiction over the Association or its representatives, as the Association does not have status as a trade union at this point in time. He asked the Board to reject the allegations as inflammatory and untrue. He characterizes the association's activities as a demonstration, part of his work over the last twenty-three years to improve the lot of owner/operators. He maintains that the evidence does not show one minute of interference with employees' work at the site.
During opening statement, applicant counsel withdrew allegations against the Association, as it concedes it is not a trade union, and withdrew the complaint as it related to sections that could be violated by a trade union, but not a "person", i.e. sections 74 and 76 [formerly 72 and 74]. The named respondents were amended to delete the Association and to add Mr. Natale.
The sections of the Labour Relations Act relevant to this decision are as follows:
1.-(1) In this Act,
"strike" includes a cessation of work, a refusal to work or 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;
78.-(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.
94.Where, on the complaint of a trade union, council of trade unions, employer 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 an 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, the Board may so declare and 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.
Mr. Natale argued that the Board had no jurisdiction over the Association because it is not a trade union. The Board finds no merit in this submission. It is clear that "a person" is capable of violating section 78 and thus the fact that no one was arguing that the Association is a trade union in this proceeding is not determinative of the issue before me as to whether that provision has been contravened.
The Board, after hearing and considering all the evidence and argument, dismissed the complaint in its April 8 decision. The Board's reasons for dismissing the complaint can be briefly stated. The quite unusual facts of this case, as brought out in the evidence before me, are not sufficient to be considered illegal strike activity, or activities which would have the reasonable and probable consequence that others would engage in illegal strike activity.
It was not argued that the people on the sidewalk, not being employees, were engaged in an illegal strike. Rather, it was submitted that they were likely to cause others to engage in an unlawful strike. All of the submissions made by Mr. McKee as to the illegality of recognition strikes, and the general nature of picketing on constructions sites, as set out in Horton CBI, supra, are quite accurate and nothing in this decision should be taken as detracting from or disagreeing with the jurisprudence cited. However, the evidence did not establish that this was an ordinary construction industry picket line. In opening statement Mr. Natale said they had made signs that said such things as "Now or never", OHBA Only Voice for Truckers", "Slavery is Over", "We are Not a Finance Company for the Excavators or Contractors." Even if the Board assumed that those messages could be interpreted as urging employees to strike, the evidence did not disclose the presence of any signs on the job site. Both witnesses expressly denied seeing any. The evidence of communication with the truck drivers entering and leaving the site is that the people on the sidewalk walked back and forth when non-D'Orazio trucks were at the gates, delaying some of them for periods between 3 to 10 minutes, and talking to some drivers. The evidence is devoid of any evidence as to the content of any conversations with the drivers. There is no evidence that the operation of the employer was disrupted at all despite the fact that its general manager gave evidence.
I infer from the evidence that some work of some drivers was delayed a small period of time. The significance of this in a work cycle from the site to the dump and back again that takes over two hours from start to finish, and in the absence of any evidence of any close timing of the operation, or practices as to breaks, is unclear. Are the employees of contractors, or of D'Orazio, allowed to talk to others on entering or leaving the site or not? Are delays of this extent for conversation common or not? The evidence does not assist with the answers to these questions.
I agree with applicant's counsel that neither the extent of the delay, nor the success of any efforts to persuade people to leave work, are determinative on an application such as this. However, in deciding whether the reasonable and probable consequence of the activity in this case would be an unlawful strike by the Teamsters or others, these are facts to be considered, along with all the other circumstances.
As the Act's definition of strike clearly sets out, a strike involves concerted activity designed to restrict or limit output. Is it a reasonable and probable consequence of the activity in evidence that employees would respond in concert by slowing down, curtailing or leaving work? In answering this question in the negative, I am influenced by the following facts. The Association is not a trade union whose picket lines are likely subject to the same solidarity response described in Horton CBI, supra. Rather, the circumstances of the case and some of Mr. Natale's statements at the hearing suggest it is to some extent a rival organization to the Teamsters. More importantly, the evidence disclosed no attempt by anyone to ask D'Orazio employees to slow down or stop working. Indeed, it showed no effort to talk to them at all but rather a specific targeting of non-employees. I cannot conclude that indirect and (on the evidence) likely involuntary delays in the work of employees of the nature set out above constitute a work slow down as contemplated by the Act at all, or that the actions which caused those delays would reasonably or probably result in employees being persuaded to take concerted action to curtail work themselves.
Without evidence of what was said to any employees of any of the sub-contractors' trucks on site, it is equally difficult to conclude that they were being exhorted to engage in a concerted work curtailment or likely would have as a result of their contacts with the people on the sidewalk. There is no evidence that any did. In addition, the only evidence about employees of subcontractors suggested that an individual employee of each of two different contractors may have been spoken to. In the circumstances of this case, without some further evidentiary basis, it would be an unwarranted stretch to find any concerted activity by two individuals in two different employment relationships to be a reasonable or probable response to any stimulus. Although the number of people on the sidewalk near the job site and the economic objective they have raises a legitimate question as to the nature of the activity, the evidence simply does not make out the necessary components of illegality.
The pleadings, which will not be repeated here, make very serious allegations of wrongdoing. The evidence in this case fell far short of establishing what was pleaded. The reasons for that were not addressed before the Board, and therefore it is not possible to comment on them. However, if the evidence had made out the activities pleaded, the result in this case could very well have been different. As the situation was ongoing at the time of the hearing of this matter and may still be, it is important for the Association and its members to draw an appropriate line between communicating information to people in a lawful manner as opposed to encouraging others to engage in unlawful strikes, i.e. untimely concerted work slowdowns, stoppages, or restrictions, with their potentially very serious consequences.
A section 91 [formerly section 89] complaint based on the same allegations was also filed in Board File 0045-92-U. That matter had not been formally processed when the expedited hearing in this matter was held. Counsel acknowledged the identity of the pleadings in that file with the section 94 complaint. Given that a full panel of the Board would normally deal with the section 91 complaint, but having regard to the counsel's remarks during these proceedings, that complaint will be considered adjourned sine die. Unless within a period of one year either party requests that the Board proceed with the matter, it will be terminated.