Nelson Quarry Company v. United Steelworkers of America, 1995 CanLII 9974

[1995] OLRB Rep. June 825

1960-94-U; 1961-94-M Nelson Quarry Company, Applicant v. United Steelworkers of America, Responding Party v. Communications, Energy and Paperworkers Union of Canada, Local Union No. 494, Intervenor

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members S. C. Laing and B. L. Arm­strong.

APPEARANCES: Robert Statton and Graeme Goodchild for the applicant; M. Lewis, Ray Silenzi and Emilio Campea for the responding party; John More for the intervenor.

DECISION OF THE BOARD; June 20, 1995

I

What this case is about. the parties. and the relevant provisions of the Labour Relations Act.

1. In this application, Nelson seeks relief under sections 91 and 11.1 of the Act. The focus of Nelson's complaint is certain picketing behaviour which, it asserts, contravenes sections 71, 73, 74, and 76 of the Act, or constitutes improper and undue dis­ruption under section 11.1 of the Act.

2. We should note that although Nelson's application designates the Communications, Energy and Paperworkers Union of Canada, Local Union No. 494 ("CEP Local 494") as an "ap­plicant" in this matter, Nelson itself is in fact the only applicant. Representatives of CEP Local 494 appeared at the hearing and indicated that they do not support these applications, nor does the CEP endorse Nelson's allegations of illegality. CEP Local 494 will therefore appear in the heading of this proceeding as an "intervenor", not an "applicant".

3. We should also note that the United Steelworkers of America ("the Steelworkers") is the only responding party that Nelson has named. Nelson has not named any of its employees, nor any union officials, nor any other individuals; and, consequently, no notice has been given to any­one other than the Steelworkers union, the only entity against which remedies are sought. It follows, however, that if this application is to succeed, it must be shown that Steelworkers union has acted improperly, and that some remedy is warranted against the union. It is not enough to show that some other unnamed or unidentified person has acted wrongly, nor is it enough to show that someone has acted "unlawfully" in some general sense - i.e. that someone has committed a tort, or even that there has been a breach of the Criminal Code of Canada. It must be shown that the named respondent - here the Steelworkers union - has contravened one or more sections of the Labour Relations Act.

4. Finally, we should note that this application has not been made or joined by any of the individuals or businesses with whom Nelson has commercial relationships. Nor do any of these entities complain of interference with their commercial relationships with Nelson. Nelson is acting on its own, and seeking relief on its own behalf. Our decision in this matter is therefore entirely without prejudice to any rights which these third parties may have in respect of any of the behav­iour described below.

5. We shall have more to say about that later.

6. The provisions of the Labour Relations Act to which Nelson refers in its application include the following:

7. 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.

91 .-(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of;

71. 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.

73.- (1) No person, employer, employers' organization or person acting on behalf of an employer or employers' organization shall engage in strike-related misconduct or retain the services of a professional strike breaker and no person shall act as a professional strike breaker.

(2) For the purposes of subsection (1),

"professional strike breaker" means a person who is not involved in a dispute whose primary object, in the Board's opinion, is to interfere with, obstruct, prevent, restrain or disrupt the exercise of any right under this Act in anticipation of, or during, a law­ful strike or lock-out; ("briseur de greve professionnel")

"strike-related misconduct" means a course of conduct of incitement, intimidation, coercion, undue influence, provocation, infiltration, surveillance or any other like course of conduct intended to interfere with, obstruct, prevent, restrain or disrupt the exercise of any right under this Act in anticipation of, or during, a lawful strike or lock­out. ("inconduite liee a une grave”)

(3) Nothing in this section shall be deemed to restrict or limit any right or prohibition contained in any other provision of this Act.

74.-(1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.

(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,

(a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties the

report of a conciliation board or mediator; or

(b) fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.

(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.

76. No trade union or council of trade unions shall call or authorize or threaten to call or autho­rize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.

[emphasis added]

For completeness, we might also reproduce section 78 of the Act, which reads this way:

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.

[emphasis added]

II

New/Late Particulars

7. This matter was filed in the fall of 1994, but, for reasons not here relevant, only came on for hearing before the Board on Thursday, April 6, 1995. Just before the scheduled hearing date, Nelson delivered a new schedule of particulars, detailing behaviour which it said either con­stituted a breach of the Act, or supported its claim for relief under section 11.1. On the day of the hearing, Nelson sought to supplement this new schedule of particulars, with further particulars that had not been raised previously.

8. The union protested this effort to expand the particulars, on the basis that these new allegations had not been raised in a timely way prior to the hearing, in accordance with Rules 12(d) and 16, or the Statutory Powers Procedure Act. In the union's submission, the new allegations should not be entertained, or, at the very least, the hearing should be adjourned so that the union could adequately investigate and reply to them. Counsel for the union pointed out that a lawful strike and picketing had been ongoing at Nelson's Quarry for almost a year without any serious dif­ficulties (which Nelson concedes). Counsel submitted that, in the circumstances, there was no par­ticular urgency with respect to the latest incidents of alleged impropriety, which supposedly occurred only on March 20-22, and on April 4, 1995. The union asserts that even if the allegations are true, they are isolated incidents in a generally peaceful strike/lockout, and that if there is to be any enquiry into these matters, the union should at least have a fair opportunity to respond.

9. We are inclined to agree with the union's characterization of the situation. The events complained of do appear to be isolated incidents in a long strike, which has otherwise been gener­ally orderly and uneventful (except for litigation in which Nelson itself was found to have acted ille­gally - see below). On the other hand, a long strike can create a potentially volatile environment, where the situation can change from day-to-day; and, in the instant case, Nelson has moved rea­sonably promptly after the issuance of a related Board decision (on January 3, 1995 - see in partic­ular paragraphs 16-19 which refer to the kind of complaint raised here), and reasonably promptly after the occurrences that it now claims are unlawful. Accordingly, while we agree that the union may need an opportunity to investigate and reply to the new allegations, we are not persuaded that the Board should refuse to entertain them at all. In the circumstances, only an adjournment would be warranted.

10. However, in the result, we do not have to reach any final conclusion about the ade­quacy or otherwise of the applicant's new particulars. In our view, we are able to dispose of this particular application (i.e. as framed and argued) based upon Nelson's general statement of the "problem", certain concessions made at the hearing, and the particular factual allegations made by Nelson - assuming, without finding, that they are all true and provable. For even if we assume that Nelson has accurately described the behaviour that has occurred on the picket line, it does not fol­low that the union has contravened the Act, or that any remedy is warranted against the union for what may have occurred. And, as noted, the union is the only named respondent.

III

General Background

11. Nelson operates a limestone quarry and an asphalt manufacturing plant in Burlington, Ontario. It has collective bargaining relationships with two trade unions. CEP Local 498 represents the production employees in the asphalt plant. The Steelworkers' Union represents a group of owner operators of trucks ("dependent contractors") who deliver material to Nelson's customers.

12. The Steelworkers' bargaining unit has a total of about 11 members. Each one is an owner-operator of a truck. However, these truckers are not the only group of drivers who handle Nelson's products. In fact, most of the material produced at the quarry is either delivered by inde­pendent truckers engaged by Nelson, or picked up by vehicles sent for that purpose by Nelson's customers. The Steelworkers' members work out of the Nelson site on a regular basis, but the lion's share of the delivery work is done by other drivers.

13. On March 7, 1994 the truckers in the Steelworkers' bargaining unit began a lawful strike and/or were lawfully locked out. Since March 7, 1994 they have engaged in picketing near the main entrance to the quarry. It is conceded that at least until recently (the union says "always") the picketing has been generally orderly and peaceful. We are unaware of any charges laid by the police on the scene, nor has Nelson sought injunctive relief from the Courts.

14. There has, however, been a complaint against Nelson arising from Nelson's continuing operations during the strike. That litigation warrants a brief digression.

15. It is conceded by Nelson that despite the Steelworkers' strike/lockout, the CEP mem­bers have crossed the Steelworkers' picket line, and have continued to do their work in the plant and on the site - as, of course, they are obliged to do, being bound by a subsisting collective agree­ment with Nelson (see: sections 74, 76, and 78 of the Act, reproduced above). In Ontario, employ­ees bound by a collective agreement are not permitted to engage in a sympathy strike, or to "re­spect" another union's picket line. The CEP members have adhered to that obligation, and continue to work despite the strike/lockout. In addition, a number of the independent truckers and customers who normally deal with Nelson, and who customarily visited the Nelson site prior to the strike/lockout, have continued to pick up product just as they did before. In the result, despite the strike/lockout and the associated picketing, Nelson has continued to run both its asphalt and quarry operations.

16. On August 30, 1994 the Steelworkers complained to the Board (differently constituted) that Nelson was operating in a way that contravened Section 73.1 of the Act, which limits the extent to which an employer may use "strike replacements" to perform "struck work". The details of those allegations need not be repeated here. It suffices to say that the hearings before the Board panel consumed twelve days, and the Board received a substantial amount of oral and documen­tary evidence about the way in which Nelson has run its business before and after the commence­ment of the lawful work stoppage.

17. Ultimately, the Board concluded that part of the employer's continuing operations did indeed contravene section 73.1 of the Act. The panel then requested further representations respecting the remedy (if any) that would be appropriate in the circumstances where only a portion of the impugned activity was illegal, and that portion varied from time to time, and was rather dif­ficult to identify. In other words, the Board found that while there was a breach of section 73.1 of the Act, it was a much more limited breach of the law than the union had alleged. The Board then requested further submissions with respect to remedy.

18. The Board's decision in File No. 1962-94-U was issued on January 3, 1995. We do not know whether Nelson has modified its mode of operation in light of the Board's finding of illegality.

19. The present application was filed in September 1994, and was ultimately brought on for hearing, by virtue of a letter from counsel for Nelson dated March 27, 1995. That letter outlines the behaviour that the company is now complaining about:

(1) blocking the entrance to the quarry and stopping the trucks from entering or exiting the quarry;

(2) interfering and disrupting the business of Nelson Quarry Company;

(3) not carrying out a proper information picket;

(4) blocking the driveway to the quarry property and not allowing trucks to enter (for at least two hours in some circumstances);

(5) stopping and delaying customers of Nelson Quarry Company from picking up their own F.O.B. aggregate;

(6) members of the Bargaining Unit of the United Steelworkers of America are not allowing brokers or independent truckers from entering and exiting the quarry prop­erty with their tractor trailer vehicles;

(7) harassing and interfering with customer's vehicles and independent trucker's vehicles by not allowing their vehicles to exit the quarry once they have been loaded; and

(8) members of the Bargaining Unit have advised certain truckers that they will not let them in to the quarry property until a specified time and that it is against the law to enter the quarry when a picket line is present.

As will be seen, Nelson is concerned about conduct on the picket line which, it says, "unlawfully" interferes with the operation of its business. Nelson argues that this conduct is a breach of the Labour Relations Act.

20. Both in his letter of April 5, 1995 (i.e. the day before the hearing), and in the course of the hearing on April 6, 1995, counsel added (or sought to add) further particulars respecting the picket line. He asserted that, on at least one occasion, an independent trucker working for a trans­port company was assaulted by two unidentified individuals while that trucker was attempting to leave the quarry. Counsel also asserted that deliveries have been delayed - sometimes significantly

• while picketers stop the arriving truckers or customers in an effort to persuade them not to make the pick-ups or deliveries which brought them to the Nelson site in the first place (i.e. the picketers have stopped the vehicles and tried to persuade the drivers not to deal with Nelson while the work stoppage is ongoing). For reasons that are not entirely clear, Nelson does not identify the persons said to be guilty of the alleged assault; and since the Steelworkers' bargaining unit only has 7-11 members, it is not evident why the culprits cannot be named.

21. In any event, Nelson complains that these activities on the picket line have interfered with its normal business operations, and have induced customers to purchase aggregate and related products elsewhere. Counsel submits that, on occasion, it has even been necessary to seek the assistance of the police on the scene, in order to ensure the timely pick-up and delivery of material.

22. Nelson maintains that, notwithstanding the lawful work stoppage, it is entitled to virtu­ally uninterrupted access and exit from the quarry, and that the visiting truckers should not be stopped or otherwise interfered with when they are making pick-ups or deliveries. Nelson submits that since a number of the customers or outside truckers are making repeat visits to the quarry site, it is unnecessary for the picketers to delay their entrance to the site for more than a couple of minutes, because the visiting truckers have heard the union message before. In Nelson's submis­sion, once the initial communication with these outsiders is completed, no further or later commu­nication is really necessary, because the visitors have already received the union's information, and if they are still disposed to enter the site, the union is preaching to the obviously "unconverted". Nelson seeks, among other things, a direction from the Board that:

• No truck is to be repeatedly stopped on entering and exiting the quarry.

• If there is an identification label or mark on the truck signifying that it has already received the picket line information, it is not to be subsequently stopped at all.

• The length of time for any truck to be stopped to receive any information is to be lim­ited to two minutes, which [Nelson says] is the maximum length of communication established by the strikers in the past on the picket line and all that is really necessary to communicate to potential sympathizers.

• The strikers [must] refrain from advising truck drivers that it is against the law to cross a picket line".

23. It will be seen, therefore, that Nelson seeks restrictions on both the manner in which the picketers communicate with persons having dealings with Nelson, and the content of those commu­nications. Nelson claims that these restrictions must be imposed by the Board, because the police on the scene are disinclined to intervene. The result is that Nelson's pick-up and delivery schedule is being delayed.

24. The union notes in reply that it is the only named respondent in this proceeding, and maintains that if there has been any impropriety over the course of a lengthy strike, it results from the actions of frustrated individuals, who are not acting on behalf of the union, nor with its support or encouragement. The union maintains that it is just as interested in developing a sensible picket­ing protocol as the employer is, and has consistently worked towards that objective with both the local police and the employer - at least when the employer has shown any inclination to do that. That is why the strike scene has been orderly for almost a year.

25. The union further asserts that it is entitled to encounter individuals who propose to have business dealings with Nelson, and try to persuade them not to do so. That is what picketing is for. Such communications are both contemplated by the Labour Relations Act, and protected (inter alia) by the Charter of Rights and Freedoms; and if the resulting dialogue takes minutes or hours, that is a matter between the individuals involved.

26. In the union s submission, there is no authority for the proposition that the employees' communication can only be delivered once, or can be restricted to a two minute time period; more­over, the situation is rather complicated - both legally and factually. That is why the earlier litiga­tion before the Board took so long; so it is hardly surprising that the discussion with the visiting drivers may take more that a couple of minutes, or that the content of the "message" may change as the situation develops. The union also notes that the Board has already found that the way in which Nelson was operating was contravening the law, so it can hardly be "unlawful" for the pick­eters to tell visitors that, or to try to explain why -particularly since it was the way in which Nelson was using these "outsiders" that the Board found was contrary to section 73.1 of the Labour Rela­tions Act. In the union's submission, it cannot be improper for persons on the picket line to advise the visiting truckers that they may be taking part in an arrangement that the Board has found to be unlawful - even if giving that information delays their entrance into the Nelson site, or persuades some of the visitors not to deal with Nelson at all.

27. The union acknowledges that visiting truckers or customers have a right to do business with Nelson, if that is what they want to do. However, in counsel's submission, the picketers equally have a right to explain the ongoing strike situation - including the Board's finding that Nel­son has operated in a manner that [in part] is contrary to provincial labour law. If that takes time and/or the truckers are disposed to listen, that is the natural consequence of a lawful work stop­page, which, in the union's submission, is "supposed" to put economic presence on the employer. If customers choose not to deal with Nelson, that is their prerogative; moreover, if the visitors are disturbed by the union's conduct they are the proper complainant - not Nelson. Finally, the union submits, if the visitors' decision is in breach of some contractual relationship with Nelson, Nelson's remedy lies in the Courts, not before the Labour Relations Board.

28. More fundamentally, though, the union contends that none of the behaviour referred to in the application constitutes a breach by the union of the provisions of the Labour Relations Act relied upon by Nelson in this application. It is conceded by all parties that the picketing is taking place on public property (the roadway or its margins) so, (the union argues), section 11.1 of the Act can have no application; and, in the union's submission, sections 71, 73, 74, and 76 do not apply either.

29. In the union's submission this application should be dismissed because even if the asser­tions found in it are true, they do not make out an arguable case that the union -the only named respondent - has breached any of the sections of the Labour Relations Act relied upon by Nelson. The union urges the Board not to embark upon a protracted hearing, at substantial public and pri­vate cost, when the pleadings as framed do not establish an arguable case against it. The union sub­mits that while there may have been some illegality of some kind, by someone, there has been no breach of the Labour Relations Act, by the union, and Nelson's remedies, if any, lie against some­one else or in some other forum.

IV

30. We agree with the union's characterization of the situation, and with its description of the legal framework within which Nelson's rights must be determined.

31. It will be convenient to look at the relevant sections of the Act one by one. As will be seen below, it is difficult to fit the allegations here into any of the sections relied upon by Nelson, either because they do not apply to a trade union qua union (the only responding party), or because the triggering circumstances are not present, or because (in the case of section 11.1) the Board's role in regulating picketing is legally circumscribed.

Section 74

32. Section 74 prohibits unlawful strikes or unlawful strike threats by employees. "Unlaw­ful" in this context essentially means "untimely" - that is, a work stoppage or threatened stoppage that takes place during the currency of a collective agreement, or prior to the completion of the compulsory conciliation process required by the statute (see section 74(2)). If employees engage in such conduct, their employer may seek relief under section 91 or (more commonly) section 94 of the Act.

33. But who are the "employees" allegedly contravening section 74 in this proceeding?

34. The dependent contractors employed by Nelson and represented by the Steelworkers are engaged in a lawful strike. They cannot be in breach of section 74. The asphalt plant workers represented by CEP are crossing the picket line and coming in to work, as they are required to do by the terms of their existing collective agreement. They are not engaging in a "strike" either. In fact, none of Nelson's "employees" are threatening or engaging in an unlawful strike, contrary to section 74 of the Labour Relations Act.

35. Are there any other "employees" engaging in a strike for which Nelson can seek relief?

36. It is doubtful whether a firm outside the construction industry can seek relief from the Board to prohibit an unlawful strike by someone else's employees. A comparison of sections 94 and 137 would suggest that it is only in the construction industry that such "interested persons" can seek relief when somebody else's employees are engaging in an unlawful strike, and causing disrup­tive "spillover" effects. Otherwise, there would be no reason to add the "interested person" lan­guage to section 137, which is conspicuously missing from section 95.

37. But in any event, the allegations here do not even establish that the impugned picketing behaviour is causing a "strike" as that term is defined in section 1 of the Act; for in order for behaviour to constitute a "strike" under the Act, there must be concerted activity by employees (plural - a "strike" is a group action), designed to restrict or limit output.

38. The allegations in the pleadings do not distinguish between visiting customers, or truck­ers who are independent contractors (i.e. no one's "employees" and therefore persons to whom the strike definition cannot possibly apply), and truckers who may be someone's employees but are not employees of Nelson). Only the latter group could be "on strike" vis-a-vis their employer, and then only if they were refusing work assignments in concert in a way that is designed to limit the output that is expected of them by their employer. However, the problem as Nelson puts it, is not that there are individuals who are refusing to work for their employer (assuming that they have one) "in con­cert, or in combination, or in accordance with a common understanding" in a manner that is "designed to restrict or limit their output" - a prerequisite for a finding that their behaviour consti­tutes a "strike" within the meaning of the Act (see the statutory definition). Indeed, the thrust of Nelson's complaint is not that these persons are "respecting the picket line" or refusing to cross the picket line in solidarity with the striking workers. Rather, it is that the visiting truckers are being harangued or otherwise prevented from entering or leaving the premises in a timely way. There is no allegation that visiting truckers who are employees are getting together or acting is solidarity to respect the union's picket line.

39. The behaviour described by Nelson is not a "strike" by the visiting truckers, as that term is defined in the Labour Relations Act - even assuming that some of them might be someone else's employees and thus legally capable of engaging in strike activity.

40. If some outside trucking company or customer of Nelson were before the Board seeking relief because its employees, "in solidarity", were refusing in concert to cross the picket line of the striking union, and if it were shown that the truckers' behaviour was "designed" to restrict or limit their output, then such company might well be entitled to relief. However, that is not the situation here: the visiting truckers are not "striking"; and even if some of them are "employees", Nelson is not their employer. (See generally, the discussion of picketing undertaken by G.W. Adams, Q.C., then Chair of the Ontario Labour Relations Board, in Consolidated Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274 at pp. 1286-1297; and see the discussion of section 78 of the Act below).

Section 76

41. Nelson's reliance on section 76 is subject to many of the same difficulties, because the focus of section 76 is union behaviour that "authorizes" an unlawful strike, or behaviour by union

officials that encourages etc. an unlawful strike. Again, there is no "unlawful strike" of Nelson's employees and on the pleading by anyone else either; and the thrust of the section clearly relates to a union that is in a position to "authorize" a strike because its members are somehow involved.

42. Section 76 controls the behaviour of unions and union officials in respect of those for whom they act as bargaining agent or at least over whom they have some control. Here the allega­tions do not establish that the response to the picketing at the Nelson site constitutes a strike at all by someone else's employees; and certainly the Steelworkers union (the only named respondent) cannot be said to have "called or authorized" an unlawful strike, even if there were one. Those words - "call" "authorize" - imply that the union has authority over the strikers or is somehow able to bring about or legitimize their strike activity; and in our view the expression can only relate to employees who are part of the union organization or at least a bargaining unit represented by the union (see again the comments of former Chair G.W. Adams in Consolidated Bathurst Packaging [1982] OLRB Rep. Sept. 1274). And, as before, there is no indication that some other employer is seeking any relief from the Board in respect of behaviour that that employer contends is an unlaw­ful strike of its employees.

43. As counsel for the union put it: where are the elements of an unlawful strike as defined in section 1 of the Act, let alone a strike "authorized" by the Steelworkers' union? How could the union call or authorize" a strike of visiting strangers? And if it is said that a union official has or could contravene the second part of section 76, why has that person not been made a party respon­dent?

44. We reiterate: should an outside employer seek relief from the Board because its employees are engaging in an unlawful work stoppage at the Nelson site, the Board might well issue an order directing employees to cross the picket line - as they are obliged to do, and as the workers represented by the CEP are in fact doing. However, the Board would not be inclined to remove or restrain the primary picketing described in this case (see again, Consolidated Bathurst above, and Canteen of Canada Limited, [1978] OLRB Rep. Mar. 207); and in any event, section 76, on its face does not apply to the facts pleaded by Nelson. Nor, outside the construction industry are we aware of any authority for granting an "interested person" relief in respect of a strike by someone else's employees.

45. We might also observe that, if a customer or common carrier is not requiring its employees to cross a picket line - as many do not - or if an individual driver decides not to deal with Nelson on a particular occasion, then, once again, it cannot be said that that firms' employees are engaging in a "strike" as that term is defined in the statute. And it should be remembered that a lawful strike and associated picketing are a part of the collective bargaining mechanism, and are designed to put economic pressure on the struck employer. One of the purposes of picketing is to advertise the strike and persuade the employer's customers or suppliers not to deal with the struck employer. The fact that a struck employer is suffering some resulting economic damage as a result of a strike or picketing does not advance its case one way or the other - although, of course, if its customers or suppliers are in breach of commercial contracts a struck employer may have remedies in court. However, nothing under the Labour Relations Act compels a business to maintain its commercial relationship with another business that is experiencing a strike.

46. It is also instructive to look at section 78 of the Act, even though a trade union is not a "person" capable of breaching section 78. A consideration of section 78 reinforces our view that the legislative scheme relied upon by Nelson, is really aimed at the unlawful response to the picket­ing rather than the picketing itself. It is the response that is the subject of regulation - not the pick­eting itself. This is not to say that the picketing behaviour is subject to no control at all; but merely that (aside from section 11.1 to which we will turn in a minute), the Legislature has not given the Board the plenary authority to regulate primary picketing.

47. Section 78 refers to "any act", and those words are clearly broad enough to embrace picketing activity that is engaged in by "persons" and has as a foreseeable consequence an unlaw­ful strike; and as we have already noted, a concerted response to the picket line, "in solidarity" with the picketers, would constitute a "strike" within the meaning of the Act. Thus, is some cir­cumstances, both the picketing and the resulting strike may be prohibited: the picketing because it is causing the unlawful strike, and the strike itself because it is independently unlawful. However, section 78(2) makes it clear that the prohibition in section 78(1) does not apply to "any act done in connection with a lawful strike or lawful lockout". In other words, primary picketing is permitted, even when the picketers know that as a probable and reasonable consequence other employees will "respect the picket line" and thus be engaging in an unlawful strike vis-a-vis their own employer.

48. Leaving aside section 11.1 for a moment, it is clear from the way in which section 78 is framed that so long as the picketing is done in connection with a lawful strike at the strikers' work­place, the legislative focus is on the unlawful response to the picketing, rather than the picketing behaviour itself. It is only the unlawful response to the picketing that is subject to sanction.

49. This seems to be a pretty clear indication that primary picketing is lawful under the Labour Relations Act even if it induces others to engage in an unlawful strike. Or to put it another way: if the picketing is "unlawful" in these circumstances, it is not because it breaches some provi­sion of the Act or induces others to do so, but rather because the taint of "unlawfulness" is grounded outside the statute (tortious behaviour for example). But tortious behaviour does not automatically provide a foundation for some statutory breach. The aggrieved party must seek relief within the framework that establishes the unlawfulness in the first place.

Section 11.1

50. Section 11.1 is a relatively recent addition to the Act (January 1993) which clearly focuses on both picketing activity, and its consequences (in contrast, for example, to section 78 of the Act, which is broad enough to apply to picketing is some circumstances, but does not actually use that term). In Great Atlantic and Pacific Company of Canada Limited [1994] OLRB Rep. Mar. 303, the Board described the section this way:

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

56. 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 49 of 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.

57. Section 11.1 creates a right to picket in the circumstances described, and confirms, at least inferentially, that such picketing may cause a degree of "legitimate" disruption - as of course the strike itself does. The statute then requires the Board to consider whether such disruption is "undue" in all the circumstances; and, if it is, to consider what remedial order might be appropri­ate to accommodate the competing labour relations interests involved. If section 11.1 applies, it is no longer a complete answer that the picketing occurred on "private property", and thus might be either tortious or contrary to the Trespass To Property Act. Picketing may still be "lawful" and permitted, because the Labour Relations Act now says so.

58. However, it is perhaps trite to point out that the Legislature did not give the Board ple­nary jurisdiction to regulate picketing in all circumstance. The operation of section 11.1 is limited to the specific situations identified in section 11.1(1): "premises to which the public normally has access and from which a person occupying the premises would have a right to remove individuals". The Board does not have any general jurisdiction to regulate picketing in other circumstances, unless the picketing behaviour or its consequences would be illegal under some other provision of the Act. Thus, in Queen's University at Kingston v. Canadian Union of Public Employees, Local 229 et al 95 CLLC 210-015, the Ontario Court of Appeal has recently observed that:

"It is common ground that the Ontario Court (General Division) has jurisdiction to restrict picketing on public property. The Court also has jurisdiction to restrict picketing with regard to private property, if the public does not normally have access to it. The Board has no jurisdiction in either of these situations".

53. We take this observation to mean that if the site of the picketing is not "premises to which the public has access. . ." the Board does not have any general jurisdiction to regulate pick­eting, unless the picketing would otherwise constitute a breach some other section of the Labour Relations Act, or, perhaps, cause some breach of the Labour Relations Act. For example, if the picketing activity - even on public property - is causing an unlawful strike and, at the same time, is not "in connection with" a lawful strike, it may be reachable under section 78, just as the unlawful strike may be reachable under sections 74 and 76. However, the picketing perse can only be regu­lated under section 11.1 in the stipulated and somewhat limited circumstances therein set out.

54. For the purpose of the present case, therefore, the important point is this: unless the picketing in question is taking place on the kind of "premises" described in section 11.1(1) - ". premises to which the public normally has access..." - the Board has no jurisdiction to enter into an enquiry about whether the disruption caused by the picketing is or is not "undue". And it is common ground between the parties in this case that the picketing in question is taking place on a public roadway.

55. In our view, therefore, section 11.1(1) is a complete answer to Nelson's claim under sec­tion 11.1 for relief from what it claims is "undue disruption", because it is conceded by Nelson that the picketing behaviour under review is not taking place on "premises" to which section 11.1 can apply.

56. It is doubtful whether the quarry itself would constitute "premises" to which the public normally has access, merely because persons come there from time to time pursuant to contract, to deliver the mail, or engage in other business activities. If that were the case, one would be hard put to find any business to which "the public" would not "normally" have access, and section 11.1 would be very broad indeed. That does not appear to be what the Legislature had in mind. But in any event, the place where Nelson says the picketing is occurring in this case is not "on premises occupied by Nelson, or from which Nelson would have the right to remove individuals, in the sense contemplated by section 11.1.

57. We are satisfied therefore that regardless of how one characterizes the picketing behav­iour complained about, or the disruption it is allegedly causing, it does not fall within the ambit of section 11.1. It is therefore unnecessary for us to consider whether section 11.1 is restricted only to shopping centres or like situations (as some of the cases seem to suggest), or whether an interrup­tion of two hours, two minutes, or somewhere in between would constitute "undue disruption" of Nelson's business. It suffices to say that section 11.1 provides no foundation for the relief sought by Nelson in this case.

Sections 71 and 73

58. Both of these sections are framed in general language, and prohibit the interference with statutory rights by "intimidation" or "coercion". Section 73 was introduced in 1983 to counter the activities of professional strike-breaking firms that were then beginning to appear in the Prov­ince to the detriment of orderly collective bargaining (see for example, the situation described in the decision of the Board in Securicor Investigations, [1983] OLRB Rep. May 720, which was issued shortly before the statutory amendment and illustrates the problem to which section 73 is addressed). Section 71 is framed more broadly, and contains a general prohibition against intimi­datory conduct that interferes with rights rooted in the statute. We have emphasized the statutory linkage in both sections, because neither of them deal with intimidation or coercion in the abstract. Their concern is improper pressure in respect of particular statutory rights or obligations.

59. Consistent with its origins, the terms of section 73 seem to centre on the disruptive behaviour of employers; and it is interesting to note that (in contrast to the cluster of sections in which it appears) there is no mention of trade unions at all. One must also note that where the Legislature has wanted to include a "trade union" in a prohibition, or extend it a protection, it has done so explicitly. It follows, we think, that a "trade union" is not a "person" within the context of section 73; and therefore the Steelworkers union could not breach section 73, even if it were decided that in continuing to operate its business Nelson or its customers or the independent truck­ers were somehow exercising a "right" under the Labour Relations Act. (We shall have more to say about that below). And, as noted, the Steelworkers are the only named respondent, so if sec­tion 73 does not apply to a trade union, it can provide no foundation for Nelson's complaint.

60. Section 71 also refers to the interference with "rights" or "the performance of obligations" under the Labour Relations Act and can clearly apply to trade unions. But can Nel­son's continuing operation and production of its products be considered the exercise of a "right" under the Labour Relations Act? Similarly, are suppliers, customers, or common carriers exercis­ing some statutory right or performing some statutory obligation when they are dealing with Nel­son? We do not think so.

61. The right to operate a business is not derived from or dependent upon the Labour Rela­tions Act. Nor do we think it can be said that the activities in which the business customarily engages - investing, purchasing materials, entering into contracts with customers, delivering prod­ucts, advertising, and so on - are the exercise of a right under the Labour Relations Act.

62. No doubt the labour relations activities of the business may be subject to statutory regu­lation in one way or another, and we can conceive of situations in which the Board might find an implied right or protection from the structure of the regulatory scheme. If a party was seeking to comply with the statute, or had its rights in a particular situation prescribed by statute, one might be inclined to infer a "right" protected by section 71, even if it is not stipulated explicitly. How­ever, we do not think that the "right to operate the business" itself is derived from the Labour Relations Act, nor is it rooted in or dependent upon the Labour Relations Act. And that is the only "right" that Nelson claims is being interfered with by the impugned picketing activity.

63. In this regard the entrepreneurial "rights" of the employer stand on a different footing from the collective bargaining "rights" of a trade union. At common law, there was no statutory foundation for collective bargaining activity, the resulting "collective agreement" was not recog­nized or enforceable at law as a "contract", and the trade union itself was not a legal entity. That is why the Labour Relations Act necessarily includes such sections as 1(2), 51 and 3 which read as fol­lows:

l.-(2) For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of the person's ceasing to work for the person's employer as the result of a lock­out or strike or by reason only of being dismissed by the person's employer contrary to this Act or to a collective agreement.

51. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

52. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

But there is no need for similar underpinning for the employer's business activities, because they were not unlawful to begin with, nor do they require a statutory envelope to give them legitimacy. They are not rooted in the statute, but rather exist independently of it.

64. Similarly, we do not think that the "right" of a customer or carrier to deal with a busi­ness (on strike or otherwise) is derived from or rooted in the Labour Relations Act. Nor can such dealings be described as the exercise of a statutory right, or the performance of a statutory obliga­tion. Certainly the Act does not say so in the kind of explicit language found in section 3; nor can such statutory right be gleaned from the structure of the Act or the purposes set out in section 2.1 of the Act.

65. Obviously, a collective bargaining activity may impinge upon the way in which a busi­ness operates in the marketplace. But we do not think that those business activities are themselves rights under the Labour Relations Act, created, derived from or addressed in the statute. They are not "statutory" rights. And, we repeat, those were the only "rights" that Nelson identified were being interfered with.

66. It follows that the behaviour complained of, even if proved, would not fit within the ambit of either sections 73 or 71 of the Act, because it was not undertaken in respect of the exer­cise of a "right" under the Act, or the performance of an "obligation" under the Act.

67. This is not to say that the Board condones the behaviour described by Nelson, or that Nelson has no legal "rights" in the situation, or that Nelson is without legal remedies. There may well be rights and remedies at common law or under some other statute or in some other forum. We rule only that on the particular facts alleged, we do not think that there is an arguable breach of the provisions of the Labour Relations Act relied upon, nor an arguable case for the remedies requested. To put the matter another way: we do not think that the Board can remedy the kind of alleged illegality raised by the employer in this case, because the facts even if true, do not make out an arguable violation by the union of the sections of the Act relied upon.

68. For the foregoing reasons, this application is dismissed.

69. Such dismissal is, of course, without prejudice to any rights which either Nelson or those with whom it deals may have in any other forum or before this Board in other circumstances.