Court File and Parties
0184-01-U Mattamy Homes Ltd. and its subsidiary corporations through which it carries on business at the sites as set out in Schedule “A”, Applicant v. Drywall, Acoustic, Lathing and Insulation United Brotherhood of Carpenters and Joiners of America, Local 675; Marel Contractors Ltd.; Nelmar Drywall Company Ltd.; Tabrco Management Ltd.; 4 Star Drywall Ltd.; Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America; and Chouinard Brothers Roofing Co., Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; April 18, 2001
Decision
1This is an application under section 144 of the Labour Relations Act, 1995 (the “Act”) that was filed with the Board on April 18, 2001.
2The applicant asserts:
that a number of "employees" of various contractors named as responding parties are engaging in an unlawful strike;
that the responding unions and their officials have called, authorized and threatened that unlawful strike;
that various "persons" are doing acts which they know or ought to know will induce employees to engage in an unlawful strike.
The applicant seeks a declaration that this strike activity is unlawful, as well as a direction prohibiting that unlawful conduct, and certain related relief.
3The applicant asserts that it has no collective bargaining relationship with the responding unions, but that the named responding party contractors, who are performing construction work for the applicant, have bargaining relationships with one or other of the two responding unions, and are bound by the respective collective agreements. The applicant maintains that the Drywall, Acoustic, Lathing and Insulation United Brotherhood of Carpenters and Joiners of America, Local 675 (“Local 675”) which represents employees of four of the five contractors engaged in drywalling at several of the applicant’s construction sites, called an unlawful strike at those sites in response to the applicant’s decision to engage the services of a non-union drywall contractor at another construction site (“the Avonlea site”) where Carpenters and Allied Workers, Local 27 (“Local 27”), an alleged “sister union” of Local 675, perform roofing work for the fifth named contractor, Chouinard Brothers Roofing Co.. The applicant asserts further, that members of Local 675 engaged in picketing, at the Avonlea site, and that on the alleged second occasion of that picketing, and in deference to it, Local 27 members did not report to, or perform, any work.
4At this stage the applicant’s application is a mere allegation. There has, as yet, been no hearing to establish the applicant’s assertions or to consider what remedy should flow if they are proven to be true. On the other hand, if there were collective agreements in place that apply to the workers in question, or the parties have not completed the conciliation process, the scheme of the Labour Relations Act 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) 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.
[All Collective Agreements must have a “no-strike” clause]
- 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.
[Employer-employee disputes must be arbitrated]
- (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
[Employees must not strike during a collective agreement]
- (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 unions must not sponsor strike activity]
- 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]
- (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 for refusing to engage in an unlawful strike]
- 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.
[Declaration and direction by Board re unlawful strike]
- (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]
5As 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. “Strikes” at any other time are unlawful; moreover, the definition of “strike” is quite elastic, and encompasses any work refusal by a group of employees “in concert, in combination, or in accordance with a common understanding”.
6Those words have been held to encompass a broad range of collective activity including: slowdowns, “hot cargo arrangements”, “sympathy strikes”, a concerted refusal to cross picket lines as an expression of solidarity with the actions of another trade union, or a concerted refusal to work overtime assignments. The definition is intentionally cast in very broad terms, and has been so construed by both the Board and the Courts. [See, for example: Acme Building and Construction Ltd., [1984] OLRB Rep. Aug. 1037; Toronto Transit Commission, [1984] OLRB Rep. Dec. 1781, application for judicial review dismissed June 23, 1986 (Div. Ct.); Horton CBI Ltd., [1985] OLRB Rep. June 880; and the discussion in Nelson Quarry Co., [1995] OLRB Rep. June 825.] The intention is to catch untimely work stoppages of all kinds.
7If an unlawful strike does occur, a number of remedies may result including remedies that may be available to interested parties who are injured by an unlawful strike, or in respect of picketing in connection with an unlawful strike.
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. This matter is set down for hearing on an expedited basis. The hearing will take place at the Boardroom, 2nd floor, 505 University Avenue, Toronto, on Friday, April 20, 2001, beginning at 9:30 a.m. If the case is not resolved on that date, it will continue on consecutive days, until completed or the Board otherwise directs.
[9].. The responding parties will have until 4:00 p.m. on April 19, 2001 to file their responses.
10In the meantime, the applicant and the responding parties are all directed to take all reasonable steps to bring the application and this decision to the attention of any employee or union official who may be affected by the situation under review, or the remedies which the applicant seeks.
“Patrick Kelly”
for the Board