Pell Insulation Ltd. v. Drywall, Acoustic, Lathing and Insulation United Brotherhood of Carpenters and Joiners of America, Local 675, 2001 CanLII 15730

Pell Insulation Ltd. v. Drywall, Acoustic, Lathing and Insulation United Brotherhood of Carpenters and Joiners of America, Local 675

File Nos.: 0384-01-U, 0385-01-U Date: May 1, 2001

Applicant: Pell Insulation Ltd. Responding Parties: Drywall, Acoustic, Lathing and Insulation United Brotherhood of Carpenters and Joiners of America, Local 675 and Cesar Rodrigues and Julio Da Silva.

Before: Marilyn Silverman, Vice-Chair.

Decision of the Board

1This is an application under section 144 of the Labour Relations Act, 1995 (the "Act") that was filed with the Board on May 1, 2001. There is also an application filed under section 96 of the Act.

2The applicant employer asserts:

• that a number of "employees" are engaging in an unlawful strike;
• that the responding union has called or authorized the unlawful strike and its officials have taken steps to counsel, procure, support or encourage the unlawful strike; and finally
• that various "persons" are doing acts ‑ namely picketing ‑ which they know or ought to know will induce employees to engage in an unlawful strike.

The employer seeks a declaration that the strike activity is unlawful, and a direction prohibiting that unlawful conduct.

3At this stage the employer's application is a mere allegation. There has, as yet, been no hearing to establish the employer's assertions or to consider what remedy should flow if they are proven to be true. On the other hand, if there is a collective agreement in place that applies to the workers in question, the scheme of the Labour Relations Act, 1995 certainly suggests that any strike or threatened strike would be unlawful at this time. The relevant provisions of the Act read as follows:

[Strike Definition]

1. (1) In this Act,

"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow‑down or other concerted activity on the part of employees designed to restrict or limit output.

46. Every collective agreement shall be deemed to provide that there will be no strikes or lock‑outs so long as the agreement continues to operate.

[Employee Prohibition]

79. (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 122(2) to have released to the parties the report of a conciliation board or mediator; or

(b) 14 days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.

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

[Trade Union/Union Official Prohibition]

81. 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.

[Prohibition against persons causing strikes]

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.

(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock‑out.

[No Reprisals]

85. No trade union shall suspend, expel or penalize in any way a member because the member has refused to engage in or to continue to engage in a strike that is unlawful under this Act.

[Remedy by the Board]

96. (1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(2) The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.

(3) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board.

(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; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

(6) A trade union, council of trade unions, employer, employers' organization or person affected by the determination may file the determination, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

(7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

144. (1) Where, on the complaint of an interested person, trade union, council of trade unions or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do any act that 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, it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

(2) Where, on the complaint of an interested person, trade union, council of trade unions or employers' organization, the Board is satisfied that an employer or employers' organization called or authorized or threatened to call or authorize an unlawful lock‑out or locked out or threatened to lock out employees or that an officer, official or agent of an employer or employers' organization counselled or procured or supported or encouraged an unlawful lock‑out or threatened an unlawful lock‑out, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful lock‑out or the threat of an unlawful lock‑out.

(3) Where, on the complaint of an interested person, trade union, council of trade unions, employers' organization, employee bargaining agency or employer bargaining agency, the Board is satisfied that a person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency, bargained for, attempted to bargain for, or concluded any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection 162(1), it may direct what action, if any, a person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations, or employer bargaining agency, shall do or refrain from doing with respect to the bargaining for, the attempting to bargain for, or the concluding of a collective agreement or other arrangement other than a provincial agreement as contemplated by subsection 162(1).

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

[emphasis added]

4As will be seen, the statute contains a comprehensive code that prohibits unlawful strikes, threats of unlawful strikes and behaviour intended to encourage unlawful work stoppages. Strikes are permitted only where there is no collective agreement in force, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute. Bill 7 has added an additional requirement that (except in the construction industry) a strike must be preceded by a timely secret ballot vote of the employees who would be involved.

5These provisions are part of a comprehensive regulatory scheme that has been in place for about 50 years. Under that scheme, collective bargaining is given a statutory framework which it lacked at common law, and trade unions are relieved of many of the common law disabilities which might inhibit the bargaining process. Under the Act, a trade union can become the employees' exclusive bargaining agency upon demonstrating majority support, employers have a statutory obligation to bargain and employees are protected from employer reprisals. A strike no longer severs the employment relationship (see section 1(2)), employers cannot penalize employees for engaging in lawful strike activity, and employees have a statutory right to return to work within six months of the commencement of a lawful strike. There are a variety of procedures designed to enhance the bargaining process, promote the resolution of disputes, and protect the union's bargaining rights. Strike regulations are only part of the overall scheme, and cannot be read in isolation from it.

6In summary then, the statute supports collective bargaining, recognizes a freedom to strike, and immunizes lawful strike activity from both common law disabilities and certain forms of employer reprisal. But, at the same time, the statute regulates the manner and time in which such economic pressure can be exerted. In particular, the statute guarantees that once a collective agreement is signed, it becomes a "peace pact": there can be no strike or lock‑out during its term of operation.

7If an unlawful strike does occur, an employer can seek a number of remedies. In Monarch Fine Foods Limited, [1986] OLRB Rep. May 661, the Board outlined the options:

(1) Under section 96 an employer can seek a cease‑and‑desist order enforceable in the Ontario Court of Justice (General Division) as an Order of that Court. Disobedience can result in fine or imprisonment.

(2) An employer may seek damages at arbitration for any lost profits or economic losses.

(3) An employer can discipline employees who engage in unlawful concerted activity because engaging in a strike is a breach of their employment obligations which warrants at least some discipline, depending on the circumstances. (See for example: Re Oshawa Group Ltd. and Teamsters Union Local 419 (1988), 1988 CanLII 9224 (ON LA), 33 L.A.C. (3d) 97 where the arbitrator upheld a 14‑day suspension with consequent loss of pay for an employee engaging in an illegal strike.)

(4) The employer may seek a consent to prosecute and subsequently prosecute employees or the trade union for their breach of the law. An unlawful strike is not just a private protest. It is contrary to the Labour Relations Act. A successful criminal prosecution may result in fines of up to $2,000 per day for employees and $20,000 per day for the union.

A variety of remedies may also be available to interested parties who are injured by an unlawful strike, or in respect of picketing in connection with an unlawful strike. Those remedies need not be elaborated here.

8In unlawful strike situations (or threats) expedition is important ‑ particularly where it is said that strike activity is ongoing or imminent. The Board's practice is to schedule such matters for hearing as soon as possible. Accordingly, this matter is hereby set down for hearing on an expedited basis. The hearing will take place at the Boardroom, 2nd Floor, 505 University Avenue, Toronto, on Thursday, May 3, 2001 beginning at 9:30 a.m. If the case is not resolved on that date, it will continue on consecutive days, from day to day thereafter, until completed or the Board otherwise directs. The Manager of Field Services shall assign a Labour Relations Officer to meet with the parties at 9:00 a.m. on May 3, 2001.

9The responding parties will have until 5:00 p.m. on Wednesday, May 2, 2001 to file their replies to both applications. The time limit in the section 96 application is hereby abridged accordingly.

"Marilyn Silverman"

for the Board