[1993] OLRB Rep. November 1230
2916-93-M; 2957-93-U The Great Atlantic & Pacific Company of Canada, Limited, Applicant v. United Food & Commercial Workers International Union, Locals 175 and 633, Brian Donaghy, Darrin Fay, Frank Fortunato, Rick Fox, Helmut Halla, Robert Liotti, Donald Lupton, Gene Martin, Pam Murdok, Patricia O'Doherty, Kathy Papaconstantino, Irene Park and Cliff Skinner, Responding Parties; United Food and Commercial Workers International Union, Locals 175 and 633, Applicant v. The Great Atlantic & Pacific Company of Canada Limited, Responding Party
BEFORE: Judith McCormack, Chair.
APPEARANCES: C. R. Robertson, T. K. Billings, D. Van De Kamer, T. Farber and I. R. Peardon for the company; Kelvin Kucey for the union.
DECISION OF THE BOARD; November 25, 1993
These files include an application under section 11.1 of the Labour Relations Act brought by The Great Atlantic & Pacific Company of Canada Limited requesting restrictions on picketing, and a complaint filed by United Food and Commercial Workers International Union, Locals 175 and 633 alleging that the company has violated section 73.1 of the Act in using replacement workers. Because the parties requested a decision as soon as possible with respect to this ongoing labour dispute, the Board is issuing a bottom line decision, together with extremely abbreviated reasons in point form. Further and more extensive reasons will follow.
Turning first to the complaint in regard to replacement workers, I find on the basis of both the company's evidence and its admissions that it violated section 73.1 of the Labour Relations Act by using prohibited replacement workers to perform work at stores where employees are on a legal strike. As a result, I direct that the company cease and desist from conduct which violates section 73.1. I also direct that the company post this decision on the outside of each store on strike for a period of 14 days in locations where it will come to the attention of employees.
Turning next to the company's request for restrictions on picketing, I am not prepared to make any order in this regard. The test for imposing such restrictions under the Act is to prevent the undue disruption of the company's operations. Among other things, I have considered that:
A. The picketing has generally been peaceful, the company has been able to bring its products through the picket lines in quite a number of stores, and there is no reliable evidence with respect to the vast majority of other stores.
B. Section 11.1 contemplates some disruption without giving rise to restrictions, as long as it is not undue disruption.
C. The estimates by the company of the value of the products it wishes to bring through the picket line have fluctuated significantly, they do not take into account the spoilage that has occurred over the last week, and they represent a relatively small fraction of the overall picture in the sense of being one to two days worth of products.
D. The company has asked that the fact that the products it wishes to bring through the picket line are highly perishable play no part in my decision.
- In addition, section 11.1(5) is discretionary, and in this regard, I note:
A. The company violated the Labour Relations Act by using prohibited replacement workers in some cases to pack up and load the products to bring them through the picket line.
B. In any event, the company made little attempt to utilize other means of assistance available to it for the most part, and even contributed to its own difficulties. In regard to this latter point, it originally tried to empty its shelves of perishable products to prepare for a strike. When a strike did not occur right away, it took a calculated risk and loaded up its shelves again with an unusually large shipment of perishable food, knowing that a strike was imminent and could occur at any time if a settlement was not reached.
For the clarification of employees, the issue I have decided is not whether the company has the right to remove its inventory, but whether the circumstances in this case warrant restrictions on picketing.
Finally, although this has played no role in my decision, I record for the parties' benefit the company's statement at the hearing that one of several possible destinations for the products it wished to bring through the picket line was a food bank. The union also made it clear that if it could verify that products were bound for a food bank, the picketers would be happy to assist the company in bringing the products out.