Triple Canon Corporation c.o.b. as Baywood Homes v. Bricklayers Masons Independent Union of Canada, Local 1, 1999 CanLII 19501

[1999] OLRB REP. SEPTEMBER/OCTOBER 777

1991-99-U Triple Canon Corporation c.o.b. as Baywood Homes, Applicant v. Bricklayers Masons Independent Union of Canada, Local 1, and Labourers' International Union of North America, Local 183, Responding Parties

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: Walter Thornton, Jay Rider and Frank Canonaco for the applicant; A. M. Minsky for the responding parties; J. Vala for Labourers', Local 183.

DECISION OF THE BOARD; October 27, 1999

1On October 18, 1999 I issued a written form of the "bottom-line" decision issued on October 16, 1999. I found that Labourers' International Union of North America, Local 183 ("Labourers', Local 183") had called or authorized an unlawful strike by the employees of A-1 Walls Concrete Forming, a Division of 762345 Ontario Inc. ("A-1 "). I further ordered Labourers' Local 183 to cease and desist from calling or authorizing an unlawful strike by or with respect to the employees of any subcontractor of Triple Canon Corporation c.o.b. as Baywood Homes ("Baywood Homes"). This decision constitutes the reasons for that ruling.

2Baywood Homes is a house builder. It builds houses at the present time at at least four sites in Ontario: Bowmanville, Maple, Barrie, and Wasaga Beach. Labourers' International Union of North America ("Labourers', Local 183") has made an application for certification with respect to a unit of employees in Board Area 9 (Bowmanville). On all sites the work was subcontracted. Some of the work was performed by employees of three subcontractors on each site who, it was alleged, had collective bargaining relationships with Labourers', Local 183. On October 12, 1999 all work being performed by those three subcontractors ceased to be performed at Maple, Bame and Wasaga Beach. (I refused to hear evidence with respect to the Maple site for reasons set out below.) Baywood Homes attributed this lack of work to activity by Labourers', Local 183 and brought the instant application. It was filed with the Board at 5:30 p.m. on October 12, 1999 and came on for hearing before me on October 15, 1999 at 9:30 a.m. Pursuant to section 110(14)1 was appointed by the Alternate Chair of the Board to sit alone on this case. Because of the nature of the application, evidence was heard on Friday, October 15 and Saturday, October 16, at which time the "bottom-line" decision was issued orally.

3The first matter dealt with on October 15 was a motion by Labourers', Local 183 to strike out certain portions, or all, of the pleadings by Baywood Homes. I ruled at that time that certain portions would be struck. Essentially, I struck those which alleged that unnamed representatives of the union, on one day or during a one-week period, had done or said certain things. I ruled these pleadings were to be struck as they did not conform to Rules 26(d) and 38, which provide as follows:

26. Any application filed with the Board must include the following details:

d) a detailed statement of all the material facts on which the applicant relies, including the circumstances, what happened, when and where it happened,

and the names of any persons said to have acted improperly;

38. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

An application alleging an unlawful strike is given a high priority by the Board for scheduling purposes. Rarely are other types of unfair labour practices put on for hearing so quickly, nor do they typically continue on a Saturday. The applicant is under an obligation to plead specifically the essential facts necessary to prove its case. If Labourers', Local 183 is to respond to the application in 48 hours, it must be provided with the specifics of the allegations when the application is served on it. Certain other paragraphs of the pleadings were allowed to stand for the limited purpose of proving that certain individuals had made statements which furthered a plan of calling an unlawful strike, although the allegations were not, in and of themselves, proof of the calling or authorizing of an unlawful strike.

4Although the issue did not come up until the end of argument, I ruled that the relief sought with respect to enjoining Labourers', Local 183 or any specific individual from counseling, procuring, supporting or encouraging an unlawful strike was not available on the pleadings as they stood. Those activities may only be committed by a person who is an officer, official or agent of a trade union. That is, the activities are activities of a person rather than of the trade union of which they are an officer or agent: Consolidated Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274 at paras. 20 and 21. Counsel for the applicant suggested that section 107(2) is an answer to this case. This section provides as follows:

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.

Although the section was in the statute in 1982 (then section 99), it is not referred to in the Consolidated Bathurst decision. There is no question that the counseling, procuring, supporting or encouraging of an unlawful strike must be committed by an officer, official or agent of a trade union to come within the section. In other words, the section requires that individual persons who perform this activity do it as officers or agents of a trade union. Nonetheless, the offence is committed by the person, not by the trade union. No individual was named as a responding party, although the names of certain representatives of Labourers', Local 183 were named in the pleadings. In my view, that is not sufficient. Where it is alleged that an individual has violated a section of the statute and relief in the nature of an order requiring that person to cease and desist from unlawful activity is sought, that individual person is entitled to notice as an individual person, to be named as a responding party and to be served personally. Since no individual was named as a responding party in this application, no relief with respect to counseling, procuring, supporting or encouraging an unlawful strike was given.

5With respect to the Wasaga Beach site, the evidence I heard was as follows. Baywood Homes had three subcontractors it believed to have collective agreements with Labourers', Local 183. These were: A-1 Walls Concrete Forming, a Division of 762345 Ontario Inc. ("A-1") (a basement forming company), Tony Lucas Masonry (a masonry and bricklaying company) and Lucky Carpentry (a house-framing contractor). On October 12, 1999 Michael Wall, Superintendent for Baywood Homes, saw two persons that he could identify as representatives of Labourers', Local 183 on the site, and saw two others that he believed to be, but could not identify as, representatives of Labourers', Local 183. When he arrived, those individuals were engaged in discussions with employees of the bricklaying and framing subcontractors. He wisely chose not to try to take part in those discussions. From his perspective they were discussions between union representatives and the employees he believed they represented in collective bargaining with their employers, who were subcontractors of his employer. We therefore have no evidence as to what was said in those discussions. An hour or so later, employees of the three subcontractors left the site. Tony Lucas and Frank DiPietro came to Mr. Wall and stated that Labourers', Local 183 was responsible for stopping work. All other subcontractors continued to perform their work on the site. No further work was done on that site by any of the three subcontractors, except that concrete was poured into previously built footings by Frank DiPietro on the morning of October 12 and the next day certain masonry mortar was mixed by Tony Lucas, the owner of Tony Lucas Masonry. Over the objections of counsel for Labourers', Local 183 I allowed the evidence of what Tony Lucas and Frank DiPietro said to Mr. Wall, not for the truth of the statement but simply for establishing the reason given by those subcontractors for ceasing to perform work.

6Frank DiPietro was called to testify. He is the owner of A-i. He stated that he was at the job site on October 12 with his six employees. He testified that he regularly works with his employees on basement-forming jobs. They assemble at his house and drive to the site with him, either in a company vehicle or in their own vehicles. He testified that at 7:35 on October 12, 1999 he and his employees were approached by Luis Camara and Luis Torres, both representatives of Labourers', Local 183, who were known to him through his dealings with the union. He testified that he had a collective agreement with Labourers', Local 183 and had, in fact, settled a grievance with them in June or July of 1999, which settlement involved the payment of $6,750.00 in damages. The two representatives told him and his employees that they were not to work on the site, and further stated "It would be in your best interests not to work" and again "It would be detrimental to your health if you did work". The two representatives then spoke to two of the six employees in Portuguese. Mr. DiPietro does not speak Portuguese, and I refused to hear evidence about what his employees told him about that conversation.

7Mr. DiPietro decided to avoid a confrontation with the representatives of Labourers', Local 183 and told his employees that he did not want to put them in a position where they felt uncomfortable or intimidated and told them that they did not have to work if they chose not to. In fact, he and other employees (he gave the numbers as two on Wednesday, three on Thursday, and five on Friday) worked on another site in Stayner, Ontario. Frank DiPietro did pour concrete when it arrived later in the morning of October 12 but performed no other work on the site. On October 13 he went to the site and spoke to Luis Camara. He asked Mr. Camara if his company could work today and Mr. Camara said no. He did not try to. On October 14 and 15 an employee who lives in the subdivision in a completed house advised him that the union representatives were still there. He made no attempt to return to work on that site.

8In argument, counsel for Labourers', Local 183 suggested a number of reasons why he felt the evidence of Mr. DiPietro was not credible. I found Mr. DiPietro's evidence to be clear (though he had some difficulty expressing himself at times), logical and entirely believable. Mr. DiPietro was obviously angry about the grievance and the necessity of paying damages as a result of that grievance. That may explain why he was prepared to supply information to Baywood Homes and to be summonsed to appear. I do not, however, believe that this affected the truthfulness of his testimony before me. Finally, I note that neither Mr. Camara nor Mr. Torres took the stand.

9Mr. Wall also testified that he saw Mr. Lucas remain on the site after his employees had left. He performed clean-up and operated a fork-lift, work which was normally performed by an employee of Tony Lucas Masonry. There was, in fact, no direct evidence of any collective agreement between Tony Lucas Masonry and Labourers', Local 183.

10I found that Labourers', Local 183 had called or authorized an unlawful strike with respect to the employees of A-1. I cannot so find with respect to the employees of Tony Lucas Masonry. While many facts are similar, I have no evidence of any communication from the representatives of Labourers', Local 183 to the employees of Tony Lucas. As the Supreme Court of Canada said in Western Construction and Lumber Co. Ltd. v. Jorgensen (1973) 1973 CanLII 1287 (SCC), 40 DLR (3d), 613 at page 615: "In short, mingling with the employees and alerting them to inequities in pay and to poor working conditions did not, in all the circumstances, establish a basis of liability". Counsel for the applicant referred to the following decisions of this Board: Lummus Co. Canada Ltd., [1981] OLRB Rep. July 894; Acme Building and Construction Limited, [1984] OLRB Rep. Aug. 1037 and Horton CBI Limited, [1985] OLRB Rep. June 880. All these cases involved a picket line. A picket line is a clear statement to unionized workers in the construction industry. There was no evidence of a picket line here. Statements to employees of A-1 were clearly in furtherance of calling an unlawful strike. That is the only interpretation I am prepared to place on the statements made by Mr. Camara and Mr. Torres. With respect to Tony Lucas Masonry, we have no evidence of what was said. It is not sufficient to prove the presence of business representatives (who, if there is a collective agreement with Tony Lucas, have every right to be on the site and to speak to employees) and the subsequent refusal of employees to attend at the site.

11Counsel for Labourers', Local 183 raised two other matters. He alleged that no strike could be found to have occurred since the employer had simply rescheduled his employees to Stayner. Reference was made to a recent decision of this Board, Eastern Construction Limited, [1999] OLRB Rep. Sept/Oct. 821. The facts in that case were very different. Eastern Construction simply reassigned its employees to different tasks on the job while it ironed a jurisdictional dispute. Further, the employees whose work was interrupted were in fact members of the Labourers Union, who were the applicants in that case. In our case, A-i abandoned the site as it did not wish to require its employees to defy instructions from their union. The facts of this case are closer to State Contractors Ltd., [1985] OLRB Rep. Aug. 1304.

12Counsel for Labourers', Local 183 also argued that no collective agreement had been proved between A-1 and Labourers', Local 183 and therefore an essential element of an unlawful strike was missing. The evidence was clear that A- 1 has a collective bargaining relationship with Labourers', Local 183. It had a valid and subsisting collective agreement, at least to the extent that a grievance was settled in July of 1999. In this case, the only possibility of a lawful strike is the existence of a "No-Board Report". If that was the union's defense, that document could easily have been put to Mr. DiPietro in cross-examination (if not simply filed as evidence of a document bearing the Minister's signature). Labourers', Local 183 did not do so. If the collective agreement was alive and well in July of 1999, the existence of a "No-Board" is not very likely. It is not up to the applicant to refute every positive defense by the union. In any event, the real target of this strike was Baywood Homes with which Labourers', Local 183 has no collective agreement. The character of this strike was more in the nature of a recognition strike against Baywood Homes, and as such, was clearly unlawful. In this respect the facts and analysis in this case resemble those in Bay Tower Homes Company Ltd. [1988] OLRB Rep. March 259.

13On the Barrie site, I heard evidence from Mel Joubry, a construction superintendent for Baywood Homes. He testified that he had spoken to Allan Bremner, a Business Representative of Labourers', Local 183 known to him. He asked Mr. Bremner why Baywood Homes had "such a strong union presence" on the job site. He too believed there were four union representatives present. He testified that Mr. Bremnar's answer was: "Because union carpenters and bricklayers shouldn't be working here because [Baywood Homes] was non-union and there were union builders who needed people because of the current shortage of workers in the industry". Work by framing, basement forming, and masonry contractors ceased that day and no more work was performed for the rest of the week. I heard evidence about what representatives of subcontractors said to Mr. Joubry and to Rui Pereira (the owner of an intermediate level subcontractor). as to the reasons for those subcontractors leaving the jobs. Again, I accepted this evidence as the reasons given rather than for the truth of the statements. As was true with respect to similar evidence about what Mr. Tony Lucas said on the Wasaga Beach site, this evidence was in the end of no value to me in that there was no other evidence for which it could supply a context or motive, and nothing to establish the truthfulness of the statements made. In fact, there was never any evidence given with respect to any communication between Labourers' Local 183 and the employees of any subcontractor on the Barrie site. Since the allegation is that Labourers', Local 183 called or authorized an unlawful strike, such evidence is necessary to make such a finding. The statement of Mr. Bremner quoted above is equally consistent with organizing a boycott of Baywood Homes by certain subcontractors. Even if this action constitutes tortious activity, it is not activity which is within the jurisdiction of the Ontario Labour Relations Board, and certainly not a violation of section 144.

14It was for these reasons that I issued the decisions set out in my decision of October 18, 1999.