The Great Atlantic & Pacific Company of Canada, Limited v. United Food & Commercial Workers International Union, Locals 175 and 633

[1994] OLRB Rep. March 303

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 J. R. Peardon for the company; Kelvin Kucey for the union.

DECISION OF THE BOARD; February 16, 1994

1. These matters are an application brought by the Great Atlantic and Pacific Company of Canada Limited under section 11.1 of the Labour Relations Act to impose restrictions on picketing, together with an application brought by the United Food and Commercial Workers International Union, Locals 175 and 633 alleging that the company has violated section 73.1 of the Act by using prohibited replacement workers. Because the matters involved perishable goods and with the assistance of counsel for both parties, the Board was able to schedule them for hearing on the day that they were filed. As a result of the urgency of the situation, the Board issued its decision with abbreviated reasons on November 25, 1993 [now reported at [1993] OLRB Rep. Nov. 12301, and indicated that further reasons would follow. This decision contains those reasons.

2. Much of the evidence in these matters was not in dispute. Both parties filed affidavit material, although the union moved to cross-examine the company's deponents. The parties were then able to agree on much of the content of the affidavits. I advised the parties I would not rely on those portions of the affidavits which were not agreed upon, and the union withdrew its motion. However, I also gave the parties an opportunity to call viva voce evidence, and the company called a number of witnesses.

3. The company is engaged in the business of selling retail food and grocery products through stores across Ontario under the names of Dominion, A & P and Miracle Food Mart. The employees involved in this labour dispute are represented by the union at sixty-three stores which are for the most part operated under the name of Miracle Food Mart, although there are some anomalies in this regard. The last collective agreement between the company and the union expired on June 21, 1993 and the parties entered into negotiations for a renewal agreement. Subsequently, the Minister of Labour indicated to the parties that he would not be appointing a conciliation board.

4. The effect of the no-Board report was that employees were in a position to legally strike and the company was entitled to lock out on Tuesday, November 16. The company had determined in advance that if there was a strike, it would not attempt to operate the struck stores using, for example, employees permitted under the replacement worker provisions of the Act. Rather, it had decided it would close the stores for the duration of the dispute. In preparation for the possibility of a strike, the company halted delivery of perishable products on Saturday, November 13th, and attempted to empty its stores of fresh products through significant price reductions on Monday, November 15.

5. However, negotiations continued and employees did not strike on either Tuesday, November 16th or Wednesday, November 17th. Although the company knew that a strike was imminent if a settlement was not reached, the company decided to restock its perishable products and on Thursday, November 18th, 1993, delivered to the stores larger than usual orders of meat, dairy goods, produce and other kinds of fresh products. Later that day, negotiations broke down. That evening, the union gave notice of a strike in accordance with the replacement worker provisions of the Act, and 6,500 employees commenced a legal strike at the sixty-three stores involved.

6. In accordance with its earlier decision, the company closed the struck stores. Employees set up picket lines at the stores, which varied in size from location to location. The company then decided to pack up the perishable products in each store and bring them out through the picket lines. These products were destined to be sold in the company's non-struck stores, returned to distributors or sent to food banks. In the process of packing up and loading those products, the company used the services of persons who ordinarily worked in non-struck stores out of its head office.

7. In sixteen of the stores, the company was successful in bringing products through the picket lines in trucks. In five stores, it was unsuccessful in doing so for reasons which will be canvassed at greater length below. In the vast majority of stores, there was either vague hearsay evidence or no evidence at all with respect to what happened.

8. The company then brought the first of these applications, requesting that the Board restrict anyone from picketing, congregating or assembling at any of the company's stores in Ontario which in anyway interfered with the peaceful removal of perishable products, or alternatively, restricting anyone from interfering with, hindering, obscuring or otherwise preventing that removal in the course of exercising their right to picket under section 11.1(3). The union responded with an application alleging that the company had violated section 73.1 of the Act by utilizing prohibited replacement workers, and requested a declaration, a cease and desist order, a posting and other relief.

9. Turning first to the application with respect to prohibited replacement workers, the union's allegations relate to the use by the company of a number of individuals to pack up and load the perishable goods at certain locations. Among other things, the evidence indicates that a secret ballot strike vote was held by the union on October 24th, 1993, and that employees voted 96% to strike. There was no dispute that notice of the strike was given to the company in writing in accordance with section 73.1(2).

10. The company's evidence disclosed that on Friday, November 19th, store manager Agostino Federigo, his assistant manager Ian Searle, the company's Health and Safety Director Keith Lampson, and an assistant manager from another store, Rob Brooks, were present in Mr. Federigo's struck store at 45 Overlea Boulevard in East York. Mr. Brooks ordinarily works at a non-struck Dominion store in Northtown Plaza in North York and Mr. Lampson ordinarily works out of the company's head office, although he has been in the Overlea Boulevard store before, going over health and safety and giving directions in this regard. On this occasion however, Mr. Federigo, Mr. Searle, Mr. Brooks and Mr. Lampson were packing up fresh meat and produce and loading a truck with it.

11. The parties also agreed that on the same day, Joe Zukiel, a field merchandiser who ordinarily works out of the company's head office took meat and produce off the shelves and put them on dollies at a struck store at 1900 King Street West in Hamilton. The company conceded that this is the kind of work ordinarily performed by members of the bargaining unit.

12. Section 73.1 provides as follows:

73.1- (1) In this section,

"employer" means the employer whose employees are locked out or are on strike and includes

an employers' organization or person acting on behalf of either of them;

'~person" includes,

(a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and

(b) an independent contractor;

"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked out would ordinarily perform their work.

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,

(a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

(5) The employer shall not use a person described in paragraph I at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:

1. A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

2. The work of an employee in the bargaining unit that is on strike or is locked out.

3. The work ordinarily done by a person who is performing the work of an employee described in paragraph 2.

(6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lockout is taking place:

1. An employee or other person, whether paid or not, who ordinarily works at another of the employer's places of operations, other than a person who exercises managerial functions.

2. A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place.

3. An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1 (3).

5. A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer.

(7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the agreement of the employee.

(8) No employer shall,

(a) refuse to employ or continue to employ a person;

(b) threaten to dismiss a person or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of the person's refusal to perform any or all the work of an employee in the bargaining unit that is on strike or is locked out.

(9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer.

In accordance with section 73.1(9), the burden of proof that the company did not act contrary to section 73.1 is on the company. I note this because the evidence in some respects was relatively sketchy.

13. It was not suggested by the company that Mr. Brooks, Mr. Lampson or Mr. Zukiel were persons who were permitted to perform the work of an employee in the bargaining unit. Nor did the company take the position that it was entitled to use specified replacement workers because the situation fell within the exemptions in section 73.2. Rather, counsel ultimately made only two arguments with respect to this issue. The first was that Mr. Brooks, Mr. Lampson and Mr. Zukiel were not performing the work of striking employees when they were packing up and loading products on November 19th. In this regard the company asserted that although products would normally be packed by bargaining unit employees, it would not be in the same quantities, or involve products with the same degree of freshness as was occasioned by the strike. For example, although there would normally be some returns of fresh meat, they would be relatively negligible. Secondly, and alternatively, if the Board found that this was the work of employees in the bargaining unit, counsel argued that in the early hours of a strike, the Board should allow a certain grace period given that there was likely to be some confusion. This was particularly appropriate in this case, counsel asserted, in view of the relative newness of the replacement worker provisions. At worst, the Board should do no more than "slap the company's hands". In his view, this would involve a posting, but no cease and desist order, as the union could come back to the Board any number of times if there were further violations.

14. In response, the union was of the opinion that there was no authority to support the idea of a grace period, and that the company should not get the benefit of such a dispensation in any event because the decision to parachute in other employees and managers was not made by the store managers on their own but by the highest level of company management. Counsel also argued that employees would pack up and load products of this freshness and quantity in circumstances where stores had closed for other reasons, and that thus it could not be said that this was not bargaining unit work.

15. There is no question on the evidence in this case that removing products from shelves, packing them up and loading them is work normally performed by bargaining unit employees. The argument that the work was beyond the reach of section 73.1(5)2 because of its unusual volume or degree of freshness suggests a reading of that provision which is very narrow, and one which is incongruous with the structure of sections 73.1 and 73.2. This is not to say that "the work of an employee in the bargaining unit" means on]y work ordinarily performed by bargaining unit employees; indeed, the contrast with section 73.1(5)3 which reads in terms of "the work ordinarily done" implies that the work of an employee in the bargaining unit may encompass a significantly broader category of work. However, at the very least it would apply to the type of work ordinarily performed by employees in the bargaining unit, and the distinctions urged upon the Board by the company in these circumstances are so fine as to be singularly unpersuasive.

16. The argument that the company should be allowed a grace period because the strike had just commenced is also less than compelling. Section 73.2(11) does in fact provide for a transition or interim period in which an employer may use employees during an emergency in circumstances where this would not normally be permitted. However, the company did not assert that it fell within this exception, and there is no evidence that it did. In this situation, it seems somewhat gratuitous and inconsistent with the organization of these provisions to read in another such period. Moreover, there was no evidence that Mr. Lampson, Mr. Brooks and Mr. Zukiel were assigned to do the work in question because the company was in a state of confusion.

17. As a result, I declared that the company had violated the Act, directed that it cease and desist from so doing, and ordered that my decision of November 25th, 1993, in this regard be posted so that it would come to the attention of employees. This determination made it unnecessary for me to address the allegations with respect to two other incidents involving replacement workers, since the remedy claimed was same in any event, and I declined to do so in the exercise of my discretion under section 91(4).

18. Moving on to the application for restrictions on picketing, section 11.1 provides as follows:

11.1-(1) This section applies with respect to premises to which the public normally has access and from which a person occupying the premises would have a right to remove individuals.

(2) Employees and persons acting on behalf of a trade union have the right to be present on premises described in subsection (1) for the purpose of attempting to persuade employees to join a trade union. Attempts to persuade the employees may be made only at or near but outside the entrances and exits to the employees' workplace.

(3) During a lock-out or lawful strike, individuals have the right to be present on premises described in subsection (1) for the purpose of picketing, in connection with the lock-out or strike, the operations of an employer or a person acting on behalf of an employer. The picketing may occur only at or near but outside the entrances and exits to the operations.

(4) No person shall interfere with the exercise of a right described in subsection (2) or (3).

(5) On application, the Board may impose such restrictions on the exercise of a right described in subsection (2) or (3) as it considers appropriate in order to prevent the undue disruption of the operations of the applicant.

(6) An application respecting the exercise or alleged exercise of a right described in subsection (2) or (3) may be made only to the Board and no action or proceeding otherwise lies at law.

(7) A party to an order made under subsection (5) may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

(8) In the event of a conflict between a right described in subsection (2) or (3) and other rights established at common law or under the Trespass to Property Act, the right described in those subsections prevails.

19. Section 11.1 was passed in an environment where there has been considerable growth in private space with a public character, represented by premises such as shopping malls. These provisions appear to address the resulting legal isolation of that property, which has the potential to discourage organizing or eliminate picketing as a meaningful economic sanction. Since this is the first decision issued by the Board under section 11.1, it is useful to examine this section in some detail.

20. The new provisions establish statutory rights to organize and picket, and describe the parameters of those rights. They then prohibit interference with the exercise of the new rights, although they provide for the imposition of restrictions by the Board as it considers appropriate to prevent the undue disruption of an applicant's operations. Finally, the Board is given exclusive jurisdiction over applications respecting those rights.

21. The context in which section 11.1 now operates includes an existing allocation of jurisdiction between the Courts and the Board with respect to picketing. That allocation is reflected in the decisions of the Courts under sections 101 and 102 of the Courts of Justice Act and the Board's decisions under section 78 of the Labour Relations Act. A glance at these provisions reveals significant differences in their respective structures, functions and impact:

101.-(l) In the Unified Family Court or the Ontario Court (General Division), an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

(2) An order under subsection (1) may include such terms as are considered just.

102.-(1) In this section, "labour dispute" means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice.

(3) In a motion or proceeding for an injunction to restrain a person from an act in connection with a labour dispute, the court must be satisfied that reasonable efforts to obtain police assistance, protection and action to prevent or remove any alleged danger of damage to property, injury to persons, obstruction of or interference with lawful entry or exit from the premises in question or breach of the peace have been unsuccessful.

(4) Subject to subsection (8), affidavit evidence in support of a motion for an injunction to restrain a person from an act in connection with a labour dispute shall be confined to statements of facts within the knowledge of the deponent, but any party may by notice to the party filing such affidavit, and payment of the proper attendance money, require the attendance of the deponent to be cross-examined at the hearing.

(5) An interim injunction to restrain a person from an act in connection with a labour dispute may be granted for a period of not longer than four days.

(6) Subject to subsection (8), at least two days notice of a motion for an interim injunction to restrain a person from any act in connection with a labour dispute shall be given to the responding party and to any other person affected thereby but not named in the notice of motion.

(7) Notice required by subsection (6) to persons other than the responding party may be given,

(a) where such persons are members of a labour organization, by personal service on an officer or agent of the labour organization; and

(b) where such persons are not members of a labour organization, by posting the notice in a conspicuous place at the location of the activity sought to be restrained where it can be read by any persons affected,

and service and posting under this subsection shall be deemed to be sufficient notice to all such persons.

(8) Where notice as required by subsection (6) is not given, the court may grant an interim injunction where,

(a) the case is otherwise a proper one for the granting of an interim injunction;

(b) notice as required by subsection (6) could not be given because the delay necessary to do so would result in irreparable damage or injury, a breach of the peace or an interruption in an essential public service;

(c) reasonable notification, by telephone or otherwise, has been given to the persons to be affected or, where any of such persons are members of a labour organization, to an officer of that labour organization or to the person authorized under section 89 of the Labour Relations Act to accept service of process under that Act on behalf of that labour organization or trade union, or where it is shown that such notice could not have been given; and

(d) proof of all material facts for the purpose of clauses (a), (h) and (c) is established by oral evidence.

(9) The misrepresentation of any fact or the withholding of any qualifying relevant matter, directly or indirectly, in a proceeding for an injunction under this section, constitutes a contempt of court.

(10) An appeal from an order under this section lies to the Court of Appeal without leave.

78.- (1) No person shall do any act if 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 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.

22. Section 101 of the Courts of Justice Act describes the Court's power to grant injunctions, and section 102 sets out certain specific provisions with respect to injunctions in labour disputes. The substantive rights in this regime trace to a considerable degree from the common law, and a right to picket emerges largely in the breach, that is, in circumstances where picketing is not considered tortious or otherwise unlawful. Not all of this analytical framework is grounded in common law; one of the exceptions is the requirement in section 102 to demonstrate that police assistance has been unsuccessful, a provision which is notably absent in section 11.1.

23. Similarly, section 78 of the Labour Relations Act does not provide a statutory right to picket. Rather, it prohibits certain conduct which causes strikes and lockouts, and sweeps in picketing in certain specific circumstances as part of a larger range of such conduct.

24. In contrast, section 11.1 actually creates new substantive rights to picket and organize on certain premises (which, for the purposes of simplicity I will refer to as private property). It then protects those rights from interference and empowers the Board to impose restrictions in accordance with a specific test. Not only is this quite different from the way in which picketing has been treated at common law, even as filtered through the Courts of Justice Act, it may also be possible to conclude that the Act now provides a code supplanting the common law regime with respect to the premises in question. This is supported by both the comprehensive structure of section 11.1 and subsection (8) which provides that in the event of a conflict, the picketing and organizing rights prevail over the common law. In addition, it is evident that the Legislature chose not to address this issue in a manner which would have left the common law framework intact, for example, by simply amending the Trespass to Property Act as some provincial jurisdictions have done.

25. It is not necessary for me, however, to decide whether section 11.1 represents a complete code with respect to picketing on the premises described. It is at least clear that the question the statute directs the Board to address is whether to impose such restrictions as it considers appropriate in order to prevent the undue disruption of the applicant's operations. The effect, then, is to provide a significantly different jurisprudential context for the Board than that in which the Courts operate. Whether this test intersects at some point with a common law analysis and in what manner was not argued before me.

26. The differences in these respective provisions highlight the fact that section 11.1 takes the Board into relatively new territory. In exploring that territory, the Board must be cautious not to import jurisprudence from the Courts in an unreflective manner. It goes almost without saying that the differences among both the various provisions set out above and the common law may imply different results, depending on the situation. In addition, the Board has observed on a number of occasions that while judicial precedent may be useful in providing it with valuable insight, it is incumbent upon the Board to develop a sound and indigenous jurisprudence which reflects the complex realities of labour relations. If it did not ground its decisions in its more specific experience, the Board would be failing in its responsibility as an expert tribunal serving a distinct community. This is particularly true in an area like picketing, which is a labour relations activity with historical roots and a unique function and tradition in collective bargaining. Again, the Legislature could have addressed the problem of picketing on private property without transferring responsibility for overseeing it from the Courts to the Board. The fact that it chose to assign exclusive jurisdiction to the Board reinforces the Board's obligation to draw on its particular expertise.

27. At the same time, it is clear that the Board's jurisdiction under section 11.1 is limited to picketing on the premises set out in that provision. This means that the Courts will continue to deal with picketing beyond that context. If the Board's legal territory is only one part of a larger picture, it may also be important for the Board to remain cognizant of the Court's jurisprudence so that the impact on any particular dispute can be synchronized to some degree.

28. It is in this context that the union argues that the Board's jurisdiction under section 11.1 is limited, not just to picketing on private property, but in addition only to those aspects of the picketing that relate to private property. This might include issues relating to adjacent stores, or the operations of a mall affected by the picketing. A simple dispute between an employer and unionized employees such as the instant one, which does not involve any unique features relating to private property but merely happens to be occurring on private property is still the territory of the Courts, according to counsel. The company was of the view that the Board's jurisdiction extended to all aspects of picketing on the premises described. Aside from this particular issue, the parties were in agreement that the Board had jurisdiction with respect to this matter.

29. The proposition advanced by the union in this regard is not one supported by the language of section 11.1(6), which provides that the Board has exclusive jurisdiction over "the exercise or alleged exercise of of a right described in subsection (2) or (3)". In the circumstances of the case, that right is to be present on private property for the purposes of picketing the operations of an employer in connection with a strike. There is nothing about the language or structure of these provisions which suggests that it is only certain aspects of the picketing which fall within the Board's jurisdiction. On the contrary, if the right to picket being asserted in a case is one which has its genesis in section 11.1, then subsection 11.1(6) makes it clear that the Board has the corresponding power to oversee the exercise of that right. Indeed, the fact that the Board has jurisdiction over even an alleged exercise of that right reflects that the line around the perimeter of the Board's jurisdiction is relatively broad. It is certainly true that picketing on the premises set out in section 11.1 may have repercussions with respect to third parties adjacent to the struck employer, customers or the mall owner. While it may well be that the Board's powers with respect to picketing were intended to be primarily directed to those unique features, section 11.1(4) requires us to handle the full range of picketing issues which may arise on the premises described.

30. Indeed, the distribution of jurisdiction proposed by the union would be problematic, both from the Board's point of view and from that of the labour relations community. In any one case involving private property, there might be a series of issues in dispute with respect to the picketing, some of which might relate specifically to the fact that it is occurring on private property and some of which might not. For a party to have some of those issues dealt with by the Board, and some by the Courts is likely to be unwieldy and time-consuming, a proposition which is especially troubling in light of the expedition often required in picketing cases.

31. Counsel for the union points out that if section 11.1(6) was to be read in the manner the company urges, picketers on private property might be dealt with by the Board, and picketing on other property might be addressed by the Courts, perhaps in an inconsistent manner with respect to a strike which may be occurring in a number of locations involving both public and private property. It is certainly true that that is one possible effect of the apportionment of jurisdiction created by section 11.1, and any apportionment carries with it the possibility of some inconsistency. However, as I noted above, there is already some degree of division in picketing jurisdiction. Moreover, while there may be drawbacks to the scheme formed by section 11.1 in this jurisprudential context, the allocation proposed by counsel is no less hazardous and perhaps more so, in addition to being at odds with the plain language of section 11.1(6).

32. With this in mind, it is useful to turn to the matter of what constitutes picketing. This is not a particularly easy task. The modern picket line can involve a myriad of activities including:

employees congregating, walking, standing or sitting in various formations; speeches, singing, and chanting; the use of sound equipment or other amplification; the carrying or presentation of signs, leaflets, armbands, T-shirts, hats, or jackets with various messages; effigies or other dramatic presentations; exhortations, discussions, and insults addressed to other employees, suppliers, members of management, allies and customers; the establishment and use of facilities for shelter, heat or hygienic purposes; various kinds of attempts to hamper, hinder, obstruct or delay the entry or egress of persons or goods; and the use of social pressure in a number of ways. This is not intended to be an exhaustive list by any means, nor to suggest that all such activities should be free from restriction. Rather, it simply gives some flavour of the broad range of activities which may make up labour relations picketing in the real world.

33. The purposes of picketing are likewise myriad. Generally they include social and economic pressure on an employer, allies, customers, suppliers or colleagues, soliciting support to honour the picket line or otherwise join cause with the strikers, showering opprobrium on those not in sympathy, mobilizing the strikers themselves and building morale and cohesiveness to withstand the strike, advertising and informing specific groups or the public generally of the dispute and other means of strengthening the bargaining power of strikers.

34. With such a diversity of both purpose and means, attempting to categorically define picketing is fraught with difficulties. For one thing, some of the definitional concepts emerging from other contexts are not particularly helpful here. Drawing a line around "informational" picketing, for example, does not take into account that almost all picketing has an informational character and purpose, and almost all seeks to exert pressure beyond the mere delivery of information. In addition, the parameters of picketing as a whole are blurred. Some activities, such as walking with signs, may be self-evidently picketing, while others, such as vandalism, may not, regardless of their connection to a labour dispute. Between these more clear cut examples lies a gray area. For example, if a car is parked across an access way by a picketer, does that make it picketing? Does it make a difference if the car is plastered with picket signs or is delivering a message through sound equipment? What if picketers are sitting rather than walking? What if they are staging some kind of dramatic presentation? Is a visitor to the picket line announcing messages of solidarity from other unions engaged in picketing? With such an amorphous subject matter, it is likely, and even preferable that the boundaries of what constitutes picketing will crystallize on a case by case basis. Generally speaking, however, it is also sensible for the Board to conceive of its jurisdiction in terms of a realistic appraisal of the extensive range of activities and purposes involved in picket lines.

35. A realistic approach to what constitutes picketing does not necessarily imply an unrestrained appetite for intervention by the Board. Picketing carries with it elements of freedom of expression, association and assembly, considered fundamental to the well-being of Canadian society. Among other things, it provides a grassroots means of communication for employees who may not have access to newspaper editorial columns, advertisements or other more expensive or exclusive means. Picketing is also part of a group of economic sanctions which are considered key to the scheme of collective bargaining as a whole. While such sanctions are not frequently resorted to in the overall landscape of collective bargaining, it is axiomatic that the underlying threat of such economic conflict is what drives the vast majority of uneventful negotiations and contract settlements.

To the extent that restrictions render picketing relatively toothless, the salutary effect of economic pressure is likely to be correspondingly impaired.

36. In addition, picketing is a significant aspect of the bargaining power of organized employees. There is little doubt that restrictions on picketing affect the balance of bargaining strength in a particularly direct fashion. This is a perilous venture in circumstances where bargaining strength is not capable of real measurement, and where even if it were, the appropriate balance is steeped in controversy. Moreover, the Board can only intervene in picketing to weaken the hand of a group of employees, not to strengthen it. Although this one-sided power to intervene may flow from the fact that section 11.1(3) establishes new rights for employees, that does not necessarily alleviate the problematic nature of the Board's role in this regard. Where bargaining strength can only be adjusted by the Board in such a limited fashion, considerable caution is required.

37. The employer's interests represent competing values, often described in terms of the prerogatives of private property or a common law freedom to trade considered vital to the economy. It is also true that while considerable caution is necessary, not intervening may have a significant impact on an employer's bargaining strength, or its ability to withstand a strike or lockout. In this sense, attempting to locate a balance between the parties' competing interests inevitably affects the balance of bargaining power as well.

38. It must be recognized, however, that the Board has not been assigned an open-ended task in this regard. For example, section 11.1 which establishes a statutory right to picket, prohibits interference with it and then stipulates that in the event of a conflict, such rights take precedence over rights established at common law or under the Trespass to Property Act implies some priority for picketing with respect to both private property rights and the freedom to trade. Similarly, the scheme of the Act with its prohibition against certain kinds of replacement workers also suggests that an employer's ability to operate unimpeded during a strike has been measured by the Legislature against other interests to some degree. It is obvious, as well, that the Board's authority is circumscribed by the specific provisions of section 11.1 In other words, what is left to the Board after the decisions of legislators is a considerably more modest task, but one which must be performed against this larger backdrop.

39. That task involves not only the protection of these new rights, but also an examination of the circumstances in which they may be limited. Section 11.1(5) allows the Board to impose such restrictions as it considers "appropriate in order to prevent the undue disruption of the operations of the applicant". The company submitted dictionary definitions for disruption which included "shatter, separate forcibly; interrupt flow or continuity of; to break apart; rupture; to throw into disorder or turmoil; to destroy the unity or wholeness of; to interrupt to the extent of stopping, preventing normal continuance of, or destroying; to throw into disorder; to halt or impede the movement of, procedure of, etc.; to break or burst apart".

40. However, the word "undue' makes it clear that mere disruption alone will not give rise to restrictions. Rather, it must be something which qualifies as undue disruption. Among other things, "undue" suggests a measurement of degree in relationship to some purpose or need, that is, in contrast to disruption which might be "due". Having regard to the structure of section 11.1, that purpose or need appears to be the rights set out in subsections (2) and (3). In other words, the Board's examination of undue disruption in this case must include an assessment of the degree of disruption with reference to the right to picket.

41. In this context, it is also fair to say that the qualification of "undue" reflects statutory recognition that even peaceful picketing in a labour dispute may be inherently disruptive. To attempt to eliminate all disruption would be tantamount in many situations to banning picketing entirely, or rendering it ineffectual. Indeed, since at least one of the purposes of picketing in a labour dispute is to create social and economic pressure through disruption, the result is a dilemma which is not particularly amenable to easy reconciliation. That dilemma can be summarized by saying that the extent to which picketing is effective will often be precisely the extent to which the object of picketing will wish it to be restricted. Again, this would make the picketing right set out in subsection 11.1(3) relatively meaningless. At the same time, section 11.1 obviously contemplates that at some point on a spectrum of disruption, the granting of relief to an employer may be appropriate. Presumably an assessment of the degree of disruption for this purpose will also involve some examination of the impact of the picketing on the employer's operations.

42. In other words, the Board's application of the undue disruption test must recognize both the fundamental importance of effective picketing to the scheme of collective bargaining, and the fact that there are circumstances in which the impact of picketing upon an employer's operations will make it appropriate to grant relief to an employer. Of course, the point at which that relief arises, and the extent of that relief remain at the nub of the problem. It seems likely, however, that these matters may be more capable of resolution in the concrete circumstances of each case than in the abstract.

43. One further point in relation to subsection 11.1(5); it is also clear that the Board is not required to impose restrictions, even where it finds they would prevent undue disruption. By stipulating that the Board "may" impose restrictions as "it considers appropriate", a significant degree of Board discretion is injected into the section.

44. With this in mind, it is useful to turn to the parties' arguments in this regard. The company appeared to be of the view that it was entitled to conduct its business without any interference from picketing at all. Since the only thing it wished to do at this point in relation to the struck stores was to remove food from them, any hindrance whatsoever to this offered by picketing should be eliminated. This is a proposition which is not supported by the criterion of undue disruption in section 11.1. There is no question that this provision contemplates that there may be some degree of disruption which will not give rise to restrictions.

45. Similarly, in the presentation of its case, the company stressed the amount of money it would lose if it could not move the perishable products in question. It was difficult to get an accurate idea of this loss because the estimates provided by the company's evidence fluctuated considerably, to the point where its final estimates were close to double those it tendered initially. This did not inspire confidence in the reliability of those estimates. Even then, the figures provided represented the cost of the food to the company, not the current value of the the food which both parties agreed was deteriorating rapidly in keeping with its perishable nature, nor how much the company could minimize its loss if it was able to remove the food. In addition, it was clear that in the overall picture, the losses would amount to only one to two days worth of sales of these kinds of products. Nevertheless, it seems likely that the company was losing a considerable sum of money invested in the perishable food. It appeared that counsel was of the view that this in itself was justification enough for restrictions on picketing.

46. The problem with such an approach is that the use of economic sanctions contemplates economic loss by the parties to a labour dispute. As the employer in this case incurs the costs of its closed operations and land-locked inventory, 6,500 employees are losing their paycheques. It is this reciprocal economic cost which the theory of collective bargaining presumes will encourage settlement. In these circumstances, the pivotal issue is not whether an applicant is losing money, or how much, but whether the Board should intervene in the dispute to lessen the cost to one side only, or weaken the other's economic weapons. This is not to suggest that the economic loss experienced by an employer is irrelevant to the issue of whether imposing restrictions is necessary to prevent undue disruption. On the contrary, economic loss might well be one of a number of significant factors in measuring undue disruption. However, the Board must not lose sight of the fact that economic loss is one of the purposes of picketing, and that the imposition of restrictions alleviating such loss are likely to undermine that purpose and interfere with the functioning of economic sanctions upon which collective bargaining is premised.

47. At this point, I note that the company requested that the perishability of the food play no role in my decision. Counsel advised that the fact that the products were deteriorating was the reason only for the expedition of the proceedings. He indicated that the application was not founded on the basis of the perishability of the products, but rather on the grounds that the company owned these products and was entitled to use its inventory as it saw fit and without interference. This was given added emphasis by the fact that the company planned to bring applications subsequently for the same kind of restrictions requested here to enable it to remove the remainder of the store's non-perishable or less perishable inventory. Counsel made it clear in these circumstances that the company did not wish my decision to turn on the issue of perishability, and it does not do so. Of course, I have considered the company's economic loss as one ingredient of my decision, regardless of whether that loss was related to the fragility of the products in question.

48. The union argued for a restrictive interpretation of "operations" which would exclude the removal of the food in question. Counsel was of the view that since the company's operations were the retail sales of food, and since the stores were closed, clearing the company's shelves in this manner could not be considered part of its normal operations.

49. The language of section 11.1 does not support such a narrow interpretation. Rather "operations" is a relatively broad word, and the argument that a retail food sales operation does not include the transfer of food for sale is not very persuasive. It is not necessary to precisely delineate the ultimate scope of "operations" for the purposes of this case; suffice it to say that I have little doubt it encompasses the movement of inventory in the circumstances before me.

50. Turning now to the evidence with respect to the picketing, it was undisputed that the company was able to remove products in sixteen stores. With respect to forty-two stores, there was no reliable evidence of anything approaching undue disruption. In this regard the company proffered only hearsay evidence to the effect that unidentified store managers at unidentified locations told the company's loss prevention manager that they had had difficulties getting trucks in and out. These difficulties were mostly unspecified. There was reference to a vehicle parked in front of a receiving bay and picketers in the bays preventing trucks from backing up to a building, but it was unclear whether these conversations actually involved the five stores described below or whether they referred to the forty-two other stores. Neither did the evidence indicate how many incidents there were of this nature, any details at all, or even whether the store managers themselves had any first hand knowledge of them.

51. A finding that restrictions are appropriate to prevent undue disruption requires more specific and reliable evidence than this. The company pleads that it was under severe time constraints in preparing this application, and that first hand evidence would have taken so much time as to render the issue moot. This does not necessarily explain why the evidence was so vague. Moreover, although such evidence might have been time-consuming, there is also some merit to the union's rejoinder that these problems stem from the fact that the company was requesting a massive order covering the province. A remedy of this scale may take longer to obtain than a less sweeping one. In any event, the fact remains that the evidence with respect to these stores is simply too weak to support the conclusion that restrictions are appropriate to prevent undue disruption.

There is no reverse onus under section 11.1, and for the Board to limit a statutory right such as this, an applicant must bring itself within the test set out in section 11.1(5).

52. This brings me to the five stores where evidence was called or agreed to in some detail. At three of the five stores, the facts are essentially the same and were agreed upon by the parties. Either on November 19th or November 20th, there was one incident at each store where a truck owned by another company approached the loading dock for the purpose of picking up perishable products. Some picketers took up positions in front of the trucks, and at two stores they refused to stand aside when asked to do so. There is no evidence of such a request at the third store. The parties agreed that each of the three trucks were "turned away" by the picket line and were therefore unsuccessful in removing perishable products. There was no indication of whether these events lasted a few minutes or longer, whether more than one request was made, and so forth. Three other incidents of unsuccessful pick-up's were referred to without any information with respect to the cause, or any circumstances or details. In these circumstances, the union referred me to Nedco Ltd. v. Nichols et al (1973) 3 O.R. 944 in support of the proposition that peaceful persuasion ought not to be enjoined.

53. Again, I find this evidence insufficient to persuade me that restrictions are appropriate to prevent undue disruption. There is certainly a degree of disruption, but as noted above, the Board's assessment of whether it is undue disruption must be made in a context which includes, among other things, an understanding of the nature and purposes of picketing. Because there is so little evidence with respect to the circumstances of the trucks being turned away, it is difficult to conclude that the disruption was undue in this regard. For example, the company advised the Board that the truck company drivers were themselves unionized. If what happened is that picketers simply persuaded them to honour a peaceful picket line in a lawful strike, this is a result normally contemplated by picketing. In other words, without knowing why or how the trucks were "turned away", it is difficult to conclude the disruption relied upon by the company was undue in relation to the nature and purposes of picketing.

54. Looking at it from the perspective of the impact on the company's operations, the evidence indicated that the products which could not be removed as a result amounted to three pallets in each of two stores, and eleven pallets in a third. There was no evidence as to what proportion of the whole this amounted to, the value of the products on these pallets, their degree of deterioration or the effect of these incidents on the company's operations. The only evidence that was submitted, which was with respect to the aggregate value of the perishable products, suggests that these products were a very small part, not only of the inventory as a whole, but even of the perishable products. This again makes it difficult to conclude that restrictions were appropriate to prevent undue disruption. As a result, I do not find it necessary to consider the union's argument with respect to Nedco, supra, or the relevance of this case in the context of section 11.1.

55. At a fourth store, the company's evidence indicated that a truck arrived for the purpose of removing the perishable products. The nine picketers at that store linked hands and blocked one of two access routes to the rear of the store. The company asked the picketers to move, and they declined. The company then instructed the truck to leave. The following day, another truck approached. There were six employees picketing at the time and a bicycle rack and a car had been placed in front of one of the two access routes to the store. The company called the police, but asked the officer who arrived only to verify the fact that a car was parked there. There is no evidence that the company asked police to intervene or speak to the picketers. It was undisputed that there was another access route and loading dock to the store, and there was no suggestion that it was blocked at any time during these events.

56. At the fifth store, a truck encountered no difficulty approaching the loading bay and was loaded with products. According to the company's evidence, during the loading process picketers parked cars in front of the truck. The mall management called police who, within a few minutes, discussed the matter with picketers, and the cars were removed. However, several picketers then stood at the front of the truck. At the time, Mr. Federigo testified, there were no problems, and the picketers were a calm, organized bunch he felt he could reason with. The picket captain was receptive to the idea of discussing an agreement with respect to the truck, and he took a proposal back to other picketers. However, this was ultimately rejected, and one of the picketers started yelling at the others not to move. A police officer tried to calm this picketer down, which worked to some extent, according to Mr. Federigo. The company asked the police to arrest the picketers, and the police declined, although they did not say they would not help in other ways. The company then decided to unload the truck, after which the truck proceeded to leave without difficulty.

57. On balance, I find that this evidence is also insufficient to persuade me that restrictions are appropriate to prevent undue disruption. With respect to the fourth store, the picketers blocked only one of two access routes for what appears to be a brief period of time on two occasions. For the fifth store, the length of time appears to have been longer, but picketers responded to some extent to the admonitions of police. Again, there was no evidence with respect to the amount or value of the goods involved at either store. Given that there are sixty-three stores on strike, evidence that there have been three incidents of this nature does not persuade me that restrictions are appropriate to prevent undue disruption to the company's operations.

58. I have reviewed the impact of the picketing on the employer's operations as a whole, because that is how the company framed its case. For example, counsel presented evidence and made arguments with respect to deliveries, quantities of products, and economic loss in regard to the stores as a group, and there was no evidence with respect to the impact on the operations of a particular store. However, I would also add that even if each store were considered on an individual basis, there was little evidence that restrictions were appropriate to prevent undue disruption. Since the stores were closed, there was no interference with the main business of sales. The events described represent a relatively small number of incidents over several days of peaceful picketing during which store managers and other personnel crossed the picket lines at the stores without apparent difficulty. Again, there was no evidence that the company's inability to remove the goods in question had any impact on the specific stores involved, as opposed to its operations as a whole.

59. It is worth observing at this point that the parties addressed the issue of of whether restrictions were necessary to prevent undue disruption from the standpoint of incidents which had already occurred. This was a useful way of approaching the matter. Although it does not preclude the Board from coming to reasonable inferences with respect to prevention, such inferences should be based solidly on evidence, rather than representing an exercise in speculation.

60. In any event, however, I am not convinced that I should exercise my discretion under section 11.1(5) in favour of the applicant. As noted earlier, section 11.1(5) is discretionary in its import. In this case there were several factors which led me to the conclusion that I should exercise that discretion in such a manner as to not impose restrictions.

61. In the first place, the company made little attempt to utilize other means of assistance available to it, and even contributed substantially to its own difficulties. As described above, the company originally tried to prepare for a strike by emptying its shelves of perishable products. When the strike did not occur immediately, it took a calculated risk in loading up its shelves again with a larger than usual shipment, knowing full well that a strike was imminent and could occur at any time if a settlement was not reached, with the attendant likelihood of a picket line. The company did so in spite of the fact that it had planned in advance that if a strike occurred, it would not attempt to operate any of the stores, for example, with those employees permitted under section 73.1 and 73.2, but would close down operations completely. Of course, it is not surprising that the company would wish to minimize the losses posed by its bare shelves in the absence of a strike. On the other hand, neither is it unexpected that as soon as the company loaded up its shelves, the union would find that the time was propitious to strike. This is all part of the kind of strategizing engaged in by parties involved in the legitimate use of economic sanctions. The essence of this situation is that the company gambled and lost with respect to the timing of the strike. It is not self-evident that the Board should intervene to extricate the company from difficulties it created to some degree in furtherance of its own labour relations tactics. I observe that if, for example, the union had guessed unwisely in planning its manoeuvres, the Board would not be in a position to provide it with assistance under section 11.1.

62. The evidence also indicated that the company did little to resolve the situation even after the strike commenced. For example, one of the incidents cited in support of restrictions involved the bicycle rack that was placed in front of a receiving bay. There was no suggestion that the company could not simply have removed it. Certainly there are times when action on the part of the company might contribute to problems on the picket line, and there is no doubt that restraint and level-headedness on the part of both parties to a labour dispute is critical. On the other hand, there is also some room for sensible, unprovocative activities which fall somewhere in between inertia and belligerent self-help. Similarly, in one case where a car was parked across an access route, the company requested assistance from the police, and the car was moved after their intervention. In the other case, there was no evidence that the company had even requested the assistance of the police to this effect.

63. There is no question that seeking the assistance of the police is not a condition of section 11.1, as it is under section 102 of the Courts of Justice Act. However, the police still have an important role to play in picketing, and the Board may consider this as a factor in the exercise of its discretion. Picket line disputes are often resolved by the parties working out compromises, for example, in which vehicles are permitted access on a limited or delayed basis, deliveries are taken through by hand, and so forth. The evidence indicates that the municipal police forces contacted by the company were prepared to respond to the company's calls, if needed, and negotiate with the strikers to try to resolve the situation. A witness for the company testified that a number of those police forces had special industrial relations divisions for handling picket lines. As the car incidents demonstrate, where police assistance was requested, it was useful, although the police were not prepared to go as far as the company wanted. Nevertheless, the company did not contact the police in the regions of twenty-three stores, and there is no evidence that they requested their assistance from the picket line except for the two instances described above. It was clear that if the police were not prepared to force open the picket lines or arrest picketers, the company was not interested in utilizing their services to see if their assistance might produce some common sense middle ground.

64. I do not doubt that the police forces of this province would be inclined to tread warily in this area in light of the statutory right and the prohibition against interference with that right established by section 11.1. At the same time, where police involvement is skilled and neutral, it can resolve a significant number of picket line problems. Moreover, municipal by-laws, and provincial and federal statutes may be relevant to certain aspects of picket line or related activity as well. In other words, cutting the police out of the picture would not be in the interests of either the labour relations community or the Board. While ready access to the Board is important in preventing the escalation of disputes, it would be imprudent to undermine the sort of practical accommodations which are often reached by the parties in picket line situations. One result might be the kind of situation reflected at the fourth store, where the company's efforts appeared to be directed more at compiling evidence for this application than at working out some resolution. And, of course, if police assistance does not resolve the matter, this will be relevant to the Board's discretion as well. In other words, considering this factor gives both parties to a labour dispute an incentive to reason.

65. I note that it is not necessary for me to decide whether or not the placement of the cars or the bicycle rack amounts to picketing, because I am not prepared to impose restrictions in any event. For the same reason, I have not commented on the union's argument that the cases of Nedco, supra, Blackstone Industrial Products Ltd. (1979) 1979 CanLII 2134 (ON HCJ), 23 O.R. (2d) 529 and Gravel & Lake Services Ltd. v. International Woodworkers of America - Canada, Local 2693 et al (1989) 37 C.P.C. (2d) 292 stand for the proposition that some damage and interference by picketers will not be enjoined by the Courts, nor on the relevance of this caselaw to section 11.1.

66. Finally, the fact that the Board's assistance is being requested to facilitate the removal of inventory which was at least in some part prepared for removal by prohibited replacement workers in violation of the Labour Relations Act is also a factor in my decision. While I do not wish to overstate its significance, the absence of clean hands on the part of the company is worthy of note where the Board has discretion.