[1996] OLRB Rep. May/June 336
4176-95-U Blythyonge Developments Inc., Applicant v. Labourers' International Union of North America, Local 183, Responding Party
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: D. Cowling, W Thornton, A. Taylor and P. Macarz for the applicant; S.B.D. Wahl and R. Lotito for the responding party.
DECISION OF THE BOARD; May 8, 1996.
I. Introduction
This is an application for a declaration or direction under section 144 of the Labour Relations Act, 1995. By way of Board endorsement dated March 21, 1996, as varied by a subsequent Board endorsement dated March 22, 1996, I made the following findings, declarations and directions:
Having regard to the evidence before the Board. I am satisfied that the responding party, Labourers' International Union of North America, Local 183 (hereinafter "Local 183") has violated section 81 of the Labour Relations Act, 1995 (hereinafter "the Act") in that it has threatened to picket the applicant's work site, and that such a threat constitutes a threat to call or authorize an unlawful strike for the purposes of the Act.
Pursuant to the Board's remedial authority provided by section 144 of the Act, the Board:
(a) finds and declares that Local 183 has violated section 81 of the Act:
(b) directs Local 183 to cease and desist from violating section 81 of the Act at or in relation to the applicant's project at 2727 Yonge Street, Toronto, Ontario; and
(c) directs Local 183, and any other person having notice or knowledge of this direction, to cease and desist from engaging in an unlawful strike or authorizing, threatening to call or encouraging an unlawful strike, or from doing any act, the probable consequence of which is that another person or persons will engage in an unlawful strike in relation to the applicant's project at 2727 Yonge Street, Toronto, Ontario.
- Reasons for this decision will issue at a later date.
These are the reasons for the above decision.
II. Factual Background
This application came on for hearing on March 20, 1996. During the course of the hearing, the Board heard testimony from Walter Thornton, counsel for the applicant, Blythyonge Development Inc. (the latter entity referred to at times in this decision as "Blythyonge"), and from Mr. Philip Macarz, a Vice-President of the Philmor Group, with which Blythyonge is affiliated. In lieu of testimony from Local 183, the parties stipulated four facts for the purposes of this application.
Blythyonge is engaged as a developer/general contractor of a residential condominium project located at 2727 Yonge Street, Toronto, Ontario (hereinafter referred to at times in this decision as the project" or "the site"). Blythyonge is bound to a collective agreement with Local 183, which is and was in effect at all material times, and which governs the terms and conditions of employment of labourers employed by the applicant.
The allegations of an unlawful strike made by Blythyonge stem from a lawful strike, which commenced in late January, 1996, and which was in effect at the time of the litigation of this proceeding, between Masonry Contractors' Association of Toronto Inc. (hereinafter referred to as "M.C.A.T.") and The Bricklayers, Masons Independent Union of Canada, Local 1 (hereinafter referred to as "Local 1”). This strike, which has affected residential construction in Board Area 8, was ongoing at all material times for the purpose of this application. The original masonry contractor on the applicant's project was Gottardo Contracting (1980) Inc. (hereinafter referred to as "Gottardo"), a member of M.C.A.T. Accordingly, Local I was at all material times in a legal strike position with respect to Gottardo.
On February 16, 1996, counsel for the applicant, Mr. Thornton, wrote to Mr. Rocco Lotito, a business representative of Local 183, after receiving a telephone call from Mr. Macarz regarding a discussion Mr. Macarz had earlier had with Mr. Lotito. Mr. Macarz had earlier spoken to Mr. Lotito respecting the performance of some masonry work on the project relating to the hydro vault, and was told by Mr. Lotito that no masonry work would be undertaken at the site. Mr. Thornton's correspondence to Mr. Lotito indicates his understanding that Local 183 was threatening to picket the project because of the presence of Gottardo at the site. He notes his understanding that the commercial agreement between Gottardo and his client permitted for the removal of Gottardo from the site, and that such removal had occurred, and invites Mr. Lotito to call him to explain any concerns regarding his client's response to the situation. I note here that the letter was errantly sent by facsimile to the offices of the Labourers' Ontario Provincial District Council, rather than those of Local 183, which may explain the failure of Mr. Lotito to contact Mr. Thornton regarding the situation.
In fact, Mr. Macarz did speak with a representative of Gottardo on February 16, 1996, and purported to verbally terminate the applicant's contract with Gottardo in accordance with the terms of the contract. The contract for masonry work had been let in December, 1994, and Gottardo had performed some tending and mobilization work on the site prior to February, 1996. The applicant had made some efforts in early February to convince Gottardo to work on the site but Gottardo, not surprisingly, refused at that time to send workers to the site because of the legal strike by Local 1. On March 18, 1996, the applicant forwarded correspondence to Gottardo in which Mr. Macarz asserted the earlier termination of the contract by way of telephone conversation, and confirmed the grounds for the termination. It is, ultimately, unnecessary for the purposes of this proceeding to make any finding as to the effectiveness of the termination of the relationship between the applicant and Gottardo.
On February 26, 1996, Birch Hill Masonry (hereinafter referred to as "Birch Hill"), a nonunion masonry contractor now under contract with Blythyonge, commenced work on the site. Until March 15, 1996, its presence on the project was uneventful. However, on that date Mr. Macarz received a telephone call from his construction superintendent in which he was advised that two representatives of Local 1 were on the site, that they had notified Birch Hill to leave the site, and that they had indicated that unless Blythyonge stopped its masonry work on the site they would picket the site on the following Monday, March 18, 1996. Mr. Macarz spoke to one of the two individuals from Local 1 (who the parties agreed were Mr. Dino Puppi and Mr. Mario Mosehella, Business Representatives of Local 1), and indicated that he thought that correspondence between Mr. Lotito and Mr. Thornton had resolved this problem. Mr. Macarz called Local 183 to clarify the situation, left a message, and received a telephone call shortly thereafter from an unidentified individual who advised him that Mr. Lotito had stated that if Blythyonge continued to use non-union masonry contractors, there would be a picket line at the project on Monday. Mr. Macarz thereupon called Mr. Thornton.
After speaking to his client, Mr. Thornton subsequently spoke to Mr. Lotito regarding the situation. The thrust of these discussions was that Mr. Lotito felt that the employment of a non-union masonry contractor on the site would cause some difficulties in the Local 1 negotiations with M.C.A.T. Mr. Thornton was advised by Mr. Lotito that it was reasonably probable that the negotiations would be completed within a few days. Accordingly, Mr. Thornton indicated that he would recommend to his client that no masonry work be performed on the site until further notice to Local 183, on the understanding that Local 183 would not cause a picket line or picketing to take place, and with the proviso that he would, in the meantime, bring this application to the Board. Mr. Lotito indicated hts belief that such an application would be unsuccessful without actual picketing at the project. Mr. Lotito confirmed to Mr. Thornton that as soon as there was any masonry work performed on the site by a nonunion contractor, there would be picketing on the site. Mr. Thornton testified that there was no doubt about this assertion by Mr. Lotito, and that he had had no subsequent conversation with Mr. Lotito in which it was suggested that Mr. Lotito's position had changed.
Mr. Thornton confirmed his discussion with Mr. Lotito by way of correspondence dated March 15, 1996, which was directed to the Labourers' Ontario Provincial District Council. The letter states, in part, that the applicant's decision to not perform masonry work is "in order to co-operate with Local 183", and notes that an application to the Board would be made in the event that Mr. Lotito's "negotiations with certain masonry contractors are not resolved next week". In accordance with the discussion between Mr. Thornton and Mr. Lotito, no masonry work was performed on the site subsequent to March 15, 1996, and this application was filed with the Board on March 18, 1996.
III. Legislative Provisions
The provisions of the Act which are of importance to the determination of this application read as follows:
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.
83(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.
83(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out.
107(2) Any act or thing done or omitted by an officer, official or agent of a trade union or council of trade unions or employers' organization within the scope of the officer, official or agent's authority to act on behalf of the union, council or organization shall be deemed to be an act or thing done or omitted by the union, council or organization.
IV. Reasons for Decision
At the outset, it is critical to keep in mind that the responding party to this application is Local 183, and not Local 1. Local 1 was not provided with notice of, nor was it represented at, this proceeding. Although the underlying events leading to this application encompass the work dispute between M.C.A.T. and Local 1, the applicant has not named Local 1 or any of its officers, officials or agents as responding parties; nor has it named as responding parties Mr. Lotito or any of the other officers, officials or agents of Local 183. Accordingly, the analysis of the law and the facts of this proceeding must be made with only Local 183 as the focus, and not Local 1 or any particular individual.
Counsel for the parties provided the Board with comprehensive and helpful submissions on the various legal principles relating to picketing and unlawful strikes. I do not propose to set out the argument of counsel except to the extent that it is necessary to do so.
As a starting point, it is evident from the wording of section 81 of the Act, and from Board jurisprudence interpreting and applying predecessors of section 81, that it is a violation of the Act for a trade union to "threaten to call or authorize an unlawful strike", Accordingly, I must consider, first, whether as a matter of fact Local 183 threatened to set up a picket line at the site and, if the answer to that question is in the affirmative, whether that conduct can be characterized as calling or authorizing an unlawful strike in the circumstances outlined above.
During argument, counsel referred the Board to a number of decisions dealing with allegations of threatened strikes; in particular, Valentine Developments and Forto Forming Limited, [1973] OLRB Rep. Oct. 537, North Simcoe Electrical Contracting Limited, [1973] OLRB Rep. June 336, Maitland Redi-Mix Concrete Products Limited [1980], OLRB Rep. Dec. 1751, and Acme Building and Construction Limited, [1987] OLRB Rep. Feb. 179. Each of these decisions was rendered on its own particular facts. However, some guidance can be gleaned from comments made by the Board in the cases.
In North Simcoe Electrical Contracting Limited, supra, the applicant, which had a valid collective agreement with CLAC, was working as a subcontractor on a construction project and persons identified as being members of the IBEW commenced a picket line protesting that non-IBEW rates were being paid to the electricians on site, as well as that the electricians were not local residents. The picketing did not deter the applicant's employees from attending work, as there was no attempt to stop persons from crossing the line. One contractor's employees did respect the line, but for only one day of the three day picket, a day which was abbreviated due to weather conditions. The IBEW business agent testified that the purpose of the picket line was informational, and that he had instructed the pickets not to obstruct traffic and those going to work.
On these facts, the majority of the Board declined to grant a cease and desist order. The Board noted that the applicant had not suffered any harm, and that there was no indication that the pickets had caused detrimental economic pressure to the applicant. It was also observed that the members of other trade unions had crossed the picket lines, and that as at the date of the application all picketing had ceased. The return of the employees to work on the project also suggested to the Board that no order need issue.
A different result was reached in Valentine Developments and Forto Forming Limited, supra. In that case, the Business Manager of Local 18 of the United Brotherhood of Carpenters and Joiners of America asserted that the forming work being performed on site fell within the jurisdiction of Local 18. When the employer expressed a different opinion, the Business Manager stated that, in order to stop the work from being performed by the Labourers', he would "blanket the area with pickets even if it cost a million dollars". It was also asserted subsequently by the Business Manager that Local 18 would obtain the support of the Hamilton District Trades Council. The Business Manager did not testify at the hearing.
The Board concluded that the representations made by the Business Manager constituted "a real threat" to the applicants such that picketing "could reasonably be anticipated". The Board further concluded that the evidence before it and the jurisprudence both established the proposition that the employees engaged at the work site could be expected to honour such a picket line and that the result would be that the job would come to a stop. In the circumstances, the Board concluded that the threat made by the Business Manager constituted an unlawful strike.
In Maitland Redi-Mix Concrete Products Limited, supra, a number of statements were made by two officials of Teamsters Local Union 879 to the general contractor that picket lines would be set up at a worksite. The workers at the project were governed by collective agreements and there were no members of the Teamsters on the site. The applicant was the supplier of the ready-mix concrete to the project.
The Board, after discussing the Valentine Developments and North Simcoe decisions, observed that the distinction between the two cases "lies in the perception of the Board of what would probably happen in the former case as opposed to what had not happened in the North Simcoe case." The Board noted that in the case before it, after a series of statements, no picket line had been established, no one had engaged in an unlawful strike, and no harm had been suffered by the applicant. In the circumstances, the application for relief was determined to be premature and was compared to a request for an injunction quia timet. The Board concluded its reasons by noting that "statements by the respondent that a picket line would be set up do not persuade the Board that an unlawful strike will occur at the site. The mere apprehension by the applicant that a picket line might be set up which in turn might lead to an unlawful strike is not sufficient, on the facts before the Board, to entitle the applicant to the granting of discretionary relief...".
The final case referred to the Board is Acme Building and Construction Limited, supra. In this case, the application was based on a conversation between the applicant's project manager and the Business Representative of the responding party trade union. The Business Representative objected to the use of a non-union painting contractor at the site in question and indicated to the project manager that, if the non-union painting contractor were used, an information picket would be set up. The Business Representative in question testified that he in fact made the statements attributed to him, but stated that he did not really have any intention to set up such an information picket.
The Board, in the exercise of its discretion, did not issue a cease and desist order. It was observed that the statements made on the date in question had not been made to the applicant subsequently and nothing had been done to carry through with the statement made. The Board accepted the testimony of the Business Representative that he did not, at any time, have any intention of setting up an information line or a picket line. In the circumstances, the Board was "not persuaded that there is a real or strong likelihood that picketing will occur so that the Board should exercise its discretion to grant, in effect, quia timet relief in respect of picketing".
Turning to the instant case, Mr. Lotito did not testify on behalf of Local 183, and the testimony of Mr. Thornton and Mr. Macarz regarding their discussions with Mr. Lotito was not challenged in cross-examination. Accordingly, I accept that Mr. Lotito did assert that a picket line would appear at the site if Blythyonge continued to have its masonry work completed by a non-union contractor. It is significant, in light of the above authorities, that Mr. Lotito, though present at the hearing, did not testify that he did not intend to say what he said, or that Local 183 would refrain from picketing the site. When direct, credible evidence has been led supportive of one or more of the elements of a violation of the Act, and no evidence to the contrary is provided to the Board, both the evidence and logical inferences support a finding that the events as attested to did in fact occur. At least twice during the hearing, counsel for the applicant effectively invited Mr. Lotito to testify; Mr. Lotito at no time took counsel up on his offer.
It is evident that Birch Hill has been performing masonry work at the site since February 26, 1996, without incident. This fact could lead one to conclude that the assertion made by Mr. Lotito was without intent. However, the lack of picketing for at least part of that time is referable to the offer made by Blythyonge, through its solicitor, to perform no masonry work pending the disposition of this application. Adding force to the statement made by Mr. Lotito is the fact, mentioned to Mr. Thornton in their conversations, that he was involved in the Local I negotiations with M.C.A.T.
On balance, and in all of the circumstances, I am of the view that the statement made by Mr. Lotito was a real threat to picket the project. The statement was made by an individual knowledgeable of the state of the current negotiations between M.C.A.T. and Local 1, and was made in the context of the ongoing legal strike. The statements were made directly to the applicant's representatives. Furthermore, there is no evidence to suggest that Mr. Lotito made the statements unintentionally or that they no longer represented his thinking as at the time of the hearing. Accordingly, I am of the view that the statements made by Mr. Lotito were a real threat to set up a picket line at the applicant's site. A reasonable person, in all of the circumstances, would have perceived a real likelihood that picketing would occur on Monday, March 1 8 should the non-union masonry contractor continue its work on site.
Counsel for Local 183 asserted that the statements of Mr. Lotito were merely statements of fact, describing the situation as it related to Local 1. That is, counsel noted that Mr. Lotito never stated that Local 183 would picket the applicant's site, just that a picket line would be set up. That, it was submitted, is not improper, as it is merely a description of what might properly result from the lawful strike currently in effect by Local 1 against the members of M.C.A.T. I disagree with this assertion. Mr. Lotito is a business representative on behalf of Local 183, not an officer, official, or agent of Local 1. On the facts before me, I conclude that Mr. Lotito was speaking on behalf of Local 183 and was in fact threatening that Local 1 83 would be picketing the site. It is not, in my view, necessary for Mr. Lotito to state "I say this as a business representative of Local 183", or "Local 183 will be setting up a picket line" in order to reach an accurate conclusion respecting what entity Mr. Lotito was referring to. The conclusion to be drawn from what Mr. Lotito stated was that a Local 183 picket line would be formed at the site on Monday, March 1 8 if a non-union contractor were used to perform masonry work. And without attempting to be repetitive, if Mr. Lotito was really just describing Local l's intention, or his belief in Local l's intent, he could very easily have been sworn at the hearing to testify to that. He did not.
As was noted by counsel for Local 183 at the hearing, it is not necessarily a violation of the Act to threaten to picket a job site. As is apparent from section 81 of the Act, the illegality of the threat to picket is in the corresponding threat to call or to authorize an unlawful strike. As noted above in paragraph 13, this requires me to consider whether the threat of picketing the site constitutes a threat of an unlawful strike as defined by the Act.
A number of decisions were referred to by counsel respecting what result could reasonably be expected from Mr. Lotito's threat to have Local 183 picket the project. In Valentine Developments and Forto Forming Limited, supra, the Board noted the testimony of a witness to the effect that in the construction industry, one could generally expect from the establishment of a picket line that the employees engaged at the work site would honour the picket line, and that the job would come to a halt. A number of Ontario Supreme Court decisions were cited which have accepted this proposition (see, for example, Smith Brothers Construction Company Limited v. Jones et al (1955), 55 C.L.L.C. para. 15, 212). The Board has, subsequently, taken notice of this fact. In Horton CBI, Limited, [1985] OLRB Rep. June 880, the Board made the following observation at paragraph 16:
It has long been recognized in this Province that the affiliated building trades of the construction industry can be expected to, and do, respect each others picket lines, without having to be expressly "told" to do so. That probability has been recognized both in practice and in law ... The fact is that, regardless of the nature of the labour dispute or the details of the information conveyed by the picket signs (and here the signs themselves were rather cryptic), picketing at a construction site has a collateral purpose: to induce other employees in sympathy with the picketers to refrain from crossing the picket line and going to work, as scheduled. The message is "don't cross", which, in effect usually means "engage in a sympathy strike which will put pressure on the firm with which we have a dispute".
See also Acme Building and Construction Limited, [1984] OLRB Rep. Aug. 1037, at paragraphs 4 and 5.
I agree with the observations made in the above decisions. A picket line established by Local 183 at the site would have had the effect of causing its members to refuse to work on the site. It cannot be denied that the concerted refusal by Local 1 83 members on the site to not attend for work because of the picket line would be a strike for the purposes of the Act. Such a strike, in the absence of some lawful justification, would clearly constitute an unlawful strike for the purposes of section 8 1 of the Act. Undoubtedly Mr. Lotito would have been well aware of that fact. It could hardly be expected that Local 183 members would cross the picket line. In the result, it is apparent that Mr. Lotito, on behalf of Local 183, threatened to call or authorize a strike of Local 183 members when he made the comments he did to the applicant's representatives. The remaining question to be considered is whether there is any lawful justification for so doing.
In my view, no such justification has been established in the circumstances of this case. At all relevant times Local 183 was not in a legal strike position with regard to Blythyonge or Gottardo; the collective agreement with regard to the former is still in effect, and Local 183 has absolutely no bargaining relationship with respect to Gottardo. Quite simply, there is no provision of the Act which makes either strike action or threatened strike action by Local 183 legal as it relates to Blythyonge or Gottardo.
In that regard, counsel for Local 183 relied upon, and directed legal argument towards, section 83 of the Act, which is reproduced below:
83(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.
83(2) Subsection (I) does not apply to any act done in connection with a lawful strike or lawful lock-out.
In essence, counsel relied upon the "ally doctrine", and the fact that Birch Hill was performing "struck work", to establish the lawfulness of the conduct of Local 183.
- It is not evident to me that the "ally doctrine" has any application to these facts, keeping in mind that it is Local 183 which is the focus of this application. On the facts, there is no question that Local 183 was not in a legal strike position vis-a-vis Blythyonge. Assuming, for the purposes of argument, that Blythyonge and/or Birch Hill were "allies" of Gottardo, that relationship would not cause an otherwise unlawful strike by Local 183 to become lawful. Quite simply, Local 183 cannot avail itself of the "ally doctrine" on the facts of this case. Further, this argument must also fail for the simple reason that section 83 of the Act does not apply to trade unions. In Consolidated-Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274, the Board considered the applicability of the predecessor provisions to section 81 and 83 and in that regard made the following observations at paragraph 20:
Section 1811 only refers to a trade union in the context of the prohibition against the calling or authorizing or threatening to call or authorize an unlawful strike. None of the trade unions named in this application could call or authorize an unlawful strike of the applicant's employees within the meaning of that section in our view. None of the trade unions represented such employees and the establishment of picket lines, while provoking or causing an unlawful strike cannot be characterized as an act of calling or authorizing. To this extent we agree with the respondents that calling or authorizing an unlawful strike suggests that the trade union in question has authority over the employees who are engaging in an unlawful strike. The C.P.U. and the E.C.W.U. have no such authority. Similarly, section [83] cannot be breached by a trade onion in that it directs that 'no person shall" and, in the context of this legislation, the term “person” is not a reference to a trade onion ... [emphasis added]
If section 83(1) of the Act cannot be breached by Local 1 83, then the doctrines or principles established by the Board pursuant to section 83(2) of the Act to legitimize certain strikes called, authorized, or threatened by a trade union cannot apply to Local 183.
V. Conclusion
- For the reasons referred to above, the findings, declarations and directions set out above in paragraph 1 were made on March 22, 1996.