Hickeson-Langs Supply Company v. Teamsters Local No. 419, 1991 CanLII 6064

[1991] OLRB Rep. May 625

0350-91-U Hickeson-Langs Supply Company, Applicant v. Teamsters Local No. 419 and Sam Scrivo, Gary Sloan, Ron Scott, Nick Tarasco, George Fyfe, Ian Quin, Dan Holland, Paul White, Armand Lamonday, Wayne Hebert, Gerry Dault and Clay BoWring, Respondents

BEFORE: R. 0. MacDowell, Alternate Chair.

APPEARANCES: Jason Hanson, Larry Hargreaves, N. Patriarca, B. Fluery and R. Stuart for the applicant; T. Hawtin, Sam Scrivo, Armand Lamonday, David Watson and Tom Fraser for the respondents.

DECISION OF THE BOARD; May 10, 1991

I

1. This is an application under section 92 of the Labour Relations Act alleging that certain employees of the applicant have engaged in an unlawful strike, and that the respondent union and its officials have authorized, counselled, encouraged, procured or supported that strike. It is also alleged that those union officials have engaged in acts which they know (or should have known) would result in an unlawful work stoppage. All of these actions are said to be contrary to sections, 72, 74, and 76 of the Labour Relations Act. The work stoppage occurred when the respondent employees, members of Teamsters Local 419, refused to cross a picket line established at their place of work, by fellow members of Local 419 who work for "Oshawa Foods".

2. The respondent union and employees do not dispute that quite a number of employees (including the respondents) have not reported for work when scheduled to do so. Nor do the respondents dispute that this work refusal was triggered by the presence at the company's premises of a picket line mounted by fellow members of Local 419 who are currently engaged in a lawful strike against Oshawa Foods. The respondents contend, however, that their refusal to cross the picket line was not a "strike" within the meaning of the Act because:

(1) it was the product of individual employee decisions taken without consultation or collaboration with other employees;

(2) it reflects each individual employee's judgement that it was unsafe to cross the picket line to go to work; or, in the alternative,

(3) it reflects each respondent employee's individual understanding that pursuant to Article 8.02 of the collective agreement no work was required in these circumstances.

Articles 8.01 and 8.02 of the agreement read as follows:

ARTICLE 8.00- STRIKES AND LOCKOUTS

8.01 - The Union agrees that there shall be no strike and the Company agrees that there shall be no lockout during the term of this Agreement.

8.02 - It shall not be a violation of this Agreement, however, for the employees covered hereunder to refuse to cross a picket line established in support of a lawful strike.

[emphasis added]

3. The relevant "unfair labour practice" provisions of the Act are as follows:

72.-(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 113(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 113(3) to have released to the parties a notice that he 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.

74. 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.

76.-(1) No person shall do any act if he 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.

Also relevant are sections 1(1)(o) and 42:

1.-(1) In this Act,

(o) "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;

42.-(1) Every collective agreement shall provide that there will be no strikes or lock-outs so long as the agreement continues to operate.

(2) If a collective agreement does not contain such a provision as is mentioned in subsection (1), It shall be deemed to contain the following provision:

"There shall be no strikes or lock-outs so long as this agreement continues to oper­ate."

II

Background

4. In accordance with its usual practice, the Board directed the abridgement of the time limits for filing pleadings, and put the matter on for hearing quickly. Vice-Chair O'Neil said this:

1. This is an application under section 92 of the Labour Relations Act. The applicant employer asserts that the respondents are engaging in an unlawful strike. We feel it would be useful to reiterate what the Board wrote in its unreported decision between the same parties on Novem­ber 15, 1988, Hickeson-Langs Supply Company, Board File 1952-88-U as follows:

2. …..

If, as the applicant asserts, there is a collective agreement in existence, there is little doubt any strike would be unlawful. The Ontario Labour Relations Act absolutely prohibits any work stoppage during the currency of a collective agreement.

2. In a recent case involving Teamsters Local 647 and Monarch Fine Foods Limited (see: Monarch Fine Foods Limited, [1986] OLRB Rep. May 661) the Board empha­sized, once again, that the parties to a collective agreement are prohibited from engaging in a strike or lockout during the term of a collective agreement and prior to completion of the compulsory conciliation process. The Board observed that in the event of an unlawful strike, an employer is entitled to seek a variety of remedies:

(1) Under section 92 an employer can seek a cease-and-desist order enforceable in the Supreme Court of Ontario 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.

(3) An employer can discipline employees who engage in unlawful concerted activity because engaging in a strike is a serious breach of their employment obligations which warrants at least disci­pline and, in the view of some arbitrators, discharge. (See for example: Re Oshawa Group Ltd. and Teamsters Union Local 419 (1988), 1988 CanLII 9224 (ON LA), 33 LAC. (3d) 97 where the arbitrator upheld a 14-day suspension with consequent loss of pay for an employee engaging in an illegal strike. See also the unreported decision of Michel Picher involving the same parties released June 30, 1988.)

(4) The employer may seek consent to prosecute and subsequently prosecute employees or the trade union for their breach of the law. A 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 $1,000 per day for employees and $10,000 per day for the Union. [Now $2,000 and $25,000 respectively.]

In this case the employer seeks a cease-and-desist direction under section 92, and a declaration that anyone violating the direction sought may expose himself to committal, fine, or criminal prosecution for an indictable offence as well as a declaration by the Board that Articles 8.02 and 8.03 of the collective agreement between the applicant and Teamsters' Local 419 are void.

2. In unlawful strike applications, expedition is important - particularly when it is said that the strike is ongoing at the time the application is made and there is the possibility of serious eco­nomic disruption to the employer's enterprise. Accordingly, the Board is satisfied that it is nec­essary in the public interest that the time for the filing of the replies and for the service of notices of hearing be abridged, and hereby so directs. The replies of the respondent may be filed with the Board at any time prior to the hearing. This matter is hereby set down for hearing at 1:30 p.m. on Thursday, May 2, 1991, at the Board's offices at 400 University Avenue, Toronto, M7A 1V4.

5. The Board's reference to the company's earlier complaint is no coincidence. These par­ties are no stranger to the Board, or to the problem of unlawful strikes. In November 1988 the company also complained that employees were engaging in an unlawful strike. That proceeding was ultimately adjourned on the basis of this undertaking from Local 419:

"The union agrees to take reasonable steps to prevent unlawful strikes at the employer's Toronto Branch premises and to take reasonable steps to end unlawful strikes should such strikes occur".

As a result of the work stoppage in November 1988, the company disciplined all but one of the employee respondents in the present case.

6. Nor was the 1988 proceeding the only one which the company felt obliged to launch in order to ensure compliance with the "no strike" obligation in the Labour Relations Act and the parties' collective agreement. In September 1985 the company filed a similar complaint of an unlawful strike naming, inter alia, George Fyfe, Ronald Scott, and Sam Scrivo who are also respondents in the present proceeding. That complaint resulted in both a declaration that the employees were engaged in an unlawful strike at the company's warehouse at 500 Fenmar Drive, and a direction that they forthwith cease and desist from engaging in that unlawful strike.

7. There has been a history of work stoppages involving both the respondent union, and at least some of the respondent employees in this case; moreover, in late April 1991 the company (correctly) anticipated further problems if the Oshawa Foods workers went on strike and decided to post pickets at the company's Fenmar Drive location. Accordingly, on April 27, 1991 the com­pany reminded the union, in writing, of its obligations flowing from the 1988 proceeding and the undertakings that its officials had given, and which were recorded in the Board's 1988 decision. The company also posted the Board's 1988 decisions by the employee time clock, so that they too would be reminded that any work stoppage is unlawful at this time.

8. Tom Fraser, the secretary treasurer of Local 419, assured the company that there would be no difficulties even if the workers at Oshawa Foods went on strike. He said that he would "pass the word" to the stewards at Oshawa Foods, and that he would make sure that there was no pick­eting at the company's premises. If there was no picketing, there would be no work stoppages.

9. Mr. Fraser was either unwilling or unable to fulfil these promises.

III

10. I will set out the events precipitating the current work stoppage in more detail below. First, it may be useful to briefly outline the scheme of the Labour Relations Act, and the way in which strikes are defined and regulated. That scheme was recently considered in Empress Graphic Inc., [1989] OLRB Rep. June 587, where a group of employees asserted that they were entitled to engage in a concerted work refusal because their collective agreement contained a "hot cargo" clause. The Board reviewed the law as follows:

10. The definition of the term "strike" was in issue before the Board some years ago in Domglas Ltd., [1976] OLRB Rep. Oct. 569). In that case a number of employees left their jobs and refused to work because of their disapproval of the federal wage control legislation. There was no immediate dispute with their own employers, but the work stoppage had the effect of inter­fering with production at local work places. An employer, Domglas, sought a cease and desist direction in much the same way as the applicant does here. At page 573 the Board had this to say:

11. The definition of strike as found in the Labour Relations Act appears broad enough to encompass the kind of work stoppage that is the subject matter of this application. On its face, the statutory definition appears to require only that the work stoppage, or other disruption of work, result from the combined or concerted action of employees. The two essential conditions for conduct to be characterized as a strike, therefore, appear to be: 1) concerted employee activity; 2) some disruption of the employer's operation. The question is whether we should read into this definition a further condition that the conduct be carried out for the purpose of obtaining conces­sions from the employer, or some other employer.

12. The Board held that in order for an activity to fall within the definition of "strike", there need be no intention to extract concessions from the immediate employer. The definition of strike was broad enough to encompass purely sympathetic action such as that which is involved in this case. (Indeed the definition of lockout expressly contemplates such "sympathetic" employer action). This broad definition of the term strike was approved in a unanimous decision of the Divisional Court reported as Re United Glass & Ceramic Workers of North America et al.(1978), 1978 CanLII 1625 (ON HCJ), 19 OR. (2d) 353.

13. I should also note the subsequent decision of the Supreme Court of Canada in Re Maritime Employers Association, 78 CLLC ¶14,171. There, the Court affirmed that a concerted refusal to cross picket lines because of the commonly-held belief in union solidarity was nevertheless a strike. The notion of solidarity which provides the "glue" binding workers to their trade union and its purposes, could also provide the ingredient of "common understanding" necessary to meet the definition of the term "strike" in statutes such as the Labour Relations Act.

14. It is also important to emphasize the extent to which the Ontario statute prohibits any collec­tive job action during the term of the collective agreement. Not only is the definition of the term "strike" a comprehensive one, but section 42 of the Act requires every collective agreement to contain a "no strike" clause. Parties are obliged to include in their contractual arrangements an absolute prohibition on collective action. If they do not, such clause is deemed to be included in the collective agreement.

15. The legislative formula and legal result can be stated quite simply. The collective agreement establishes a pact of industrial peace which endures until the agreement expires and the parties have completed the process of compulsory conciliation. During the term of the collective agree­ment there can be no collective job action, whether it be in support of demands by the employ­ees themselves or in sympathy with fellow workers in other establishments. Such job action by employees is a breach of section 72 of the Act. If encouraged by trade union officials, it is a breach of section 74. If induced by "persons", it may be a breach of section 76. In addition, any such job action is necessarily a breach of the "no strike" clause which must be included in all collective agreements in Ontario and which imports, as a matter of law, the statutory definition of strike.

16. Against this background, it is difficult to accept the union's submission that a collective employee work refusal, which otherwise looks very much like a strike, and which otherwise would fall within the statutory definition of a strike, is, nevertheless not a strike because of Arti­cle 34 of the agreement.

17. Counsel for the respondent union argues, quite ingeniously, that if the collective agreement defines circumstances in which employees are not required to work, it cannot be illegal for them to merely follow the terms of their collective agreement. Nor can the employer complain that they are doing so. Counsel notes that Article 34 of the current agreement has formed part of the parties' collective bargaining relationship for many years, and he asks, parenthetically: how can the employer now repudiate that provision and seek, from the Board, an order which virtually nullifies that aspect of the bargain? If the employer has undertaken not to require work in par­ticular circumstances, how can it now seek a direction forcing employees to work in those very circumstances? Counsel urges the Board to find either that, as a matter of interpretation, this concerted refusal to work does not meet the definition of the term "strike" because no work was properly required in the first place, or, alternatively, that the Board should not relieve the employer of obligations or undertakings into which it freely entered.

18. This argument, rooted in appeals to freedom of contract, has its attractions but, in my view, is not consistent with either the structure of the Labour Relations Act or the Board's established jurisprudence.

19. When boiled down to its essence, the union's argument is that a bargaining party, bolstered by superior bargaining power, can, by verbal formula, determine what will or will not be a strike notwithstanding section 42 of the Act and the panoply of provisions prohibiting collective action during the currency of a collective agreement. If the union's submission is accepted, it would be open to construct contractual language providing that no employees shall be required to work if the employer fails to capitulate to the union's position at the third stage of the griev­ance procedure, or if the employer refuses to acknowledge a union's jurisdictional claim, or if an employer discharges an employee for what the union believes is insufficient cause, or if the par­ent union, or a sister local, or the C.L.C. or the local Labour Council calls for sympathetic con­certed job action. All that would be necessary is the verbal formula: "employees will not be required to work if ...", which in practical terms, may mean: "employees may strike when.."

20. In the circumstances of this case I simply cannot accept the union's contentions; for, to do so, would virtually eliminate the legal, practical and policy thrust of the Act. It would accord to the parties the right, based upon their respective bargaining power, to define what is or is not a strike or lockout under the Labour Relations Act and would permit the very collective action for collective bargaining objectives which the statute purports to prohibit. That is not, in my view, an accurate reflection of the legislative intention, nor is it consistent with the Board's views expressed in cases involving similar issues.

21. In King Paving, [1976] OLRB Rep. June 291 and Associated Freezers of Canada Limited, [1972] OLRB Rep. May 445 there was a concerted refusal by employees to cross picket lines set up by another union, and in both cases, the employees pointed to provisions of their collective agreement which allowed them to refuse. The Board said - to put the matter colloquially - "you cannot contract out of the Act". The no-strike ban is imposed by statute as a matter of public policy, not the convenience or relative bargaining strength of the parties. It admits of no excep­tions. Any private arrangement which purports to circumvent or avoid the thrust of the Act is void. A concerted refusal to cross a picket line was a strike even though the collective agree­ment purported to permit it. (See also Hutchison Mechanical Installations Ltd., [1973] OLRB Rep. May 240, Pitts Atlantic Construction v. Construction and General Labourers 1982 CanLII 2858 (NL SC), [1982] 141 D.L.R. (3d) 164, and 1984 CanLII 3084 (NL CA), [1984] 17 D.L.R. (4th) 384 (Nfld. C.A.).)

22. In Piggott Construction Company Ltd., [1969] OLRB Rep. June 399 the Board held that a trade union could not reserve a right to strike in favour of jurisdictional claims. In Belmont Plas­tering Company Ltd., [1970] OLRB Rep. Mar. 1459 the Board held that a trade union could not reserve a right to terminate the collective agreement early and therefore put itself in a position to strike if an employer failed to remit union dues required by that collective agreement (see also section 52 of the Act). In Dover Corporation (Canada) Ltd., [1972] OLRB Rep. May 435 the Board observed that the fact that there might have been alternative work available for the striking employees was irrelevant. They could not engage in a collective refusal of the tasks to which they had been assigned. Nor, in the exercise of the Board's discretion under section 92 of the Act, does it matter that there may be other remedies available to the aggrieved employer by way of damages or disciplining recalcitrant employees (see Fabricated Steel Products Ltd., [1977] OLRB Rep. June 376).

23. In summary then, a perusal of the Board's jurisprudence in this area significantly diminishes the union's claim to some kind of "reliance interest" on its current contract language. The Board has, for years, routinely rejected efforts by parties to construct or rely upon collective agreement language that would permit mid-contract work stoppages.

(See also the decision of the Board in T. T. C., [1984] OLRB Rep. Dec. 1781, where the Board again found that a refusal to cross a picket line in sympathy with striking workers, constituted an "unlawful strike".)

11. It will be seen from T. T. C., Empress Graphics Inc., and the cases cited therein, that the law in this area has been settled and consistently applied for almost twenty-five years: there can be no "strike" of any kind during the currency of a collective agreement or until the completion of the conciliation process, notwithstanding clauses in a collective agreement which might be said to authorize such collective refusal to work; a concerted refusal to cross a picket line can constitute an unlawful strike; and the element of "concertedness" or "common understanding" necessary to meet the strike definition can be established where it is shown that workers are responding to "the commonly understood principle of the labour movement that members of unions should not cross picket lines" - to borrow the words of the Supreme Court of Canada in Maritime Employers' Association, supra. There is no doubt, therefore, about the legal principles which must be applied to the facts of this case.

12. I should add, however, that quite apart from the established case law, Article 8.02 is quite different from the clause under consideration in Empress Graphics. Article 8.02 provides only that "it shall not be a violation of [the] agreement... if employees refuse to cross a picket line established in support of a lawful strike". Its effect is limited to rights and remedies under the agreement. The clause cannot, and does not, determine what might be a violation of the Labour Relations Act, or preclude any remedy which might be available under the statute. Accordingly, Article 8.02 is of no assistance to the respondents in this case.

13. With this brief outline of the law, I return to the facts in the instant case. I might note that in assessing the credibility of the various witnesses, I have taken into account such factors as:

the demeanour of the witnesses when giving their evidence; the clarity, consistency, and general plausibility of that evidence when compared with that of other witnesses and subjected to the test of cross-examination; the tendency of the witnesses to colour or tailor their evidence in accordance with their self-interest; and what inferences seem most probable and reasonable in all the circum­stances. On that basis, I accept the evidence of Larry Hargreaves without reservation, I generally accept the evidence of witnesses Lamonday, Fyfe and White, where it is in conflict with that of other employee witnesses, and I reject to a greater or lesser extent the testimony of employees Dault, Bowring, Scott and Scrivo.

IV

14. The applicant company is a division of Oshawa Holdings Limited, which in turn is a wholly-owned subsidiary of the Oshawa Group Limited. The company operates a food service business from a warehouse located at 500 Fenmar Drive, Weston, Ontario, and services a variety of customers including restaurants, hospitals and large catering facilities. Its business is "time sen­sitive"; that is, customers expect orders to be delivered as soon as possible. The company operates twenty-four hours a day from Monday to Friday and employs warehousemen and truck drivers to "pick" and deliver its customers' orders. These employees are represented by Teamsters Union Local 419. Local 419 is a so-called "composite local", with members who work for a number of dif­ferent employers. Local 419 has separate collective agreements/bargaining relationships with those employers.

15. The company is a party to a collective agreement with Teamsters Local Union No. 419

which expired on March 9, 1991, and has been extended pursuant to section 79 of the Labour Rela­tions Act. The company's employees are not now in a position to engage in a lawful strike, Local 419 is not entitled to authorize a strike, and union officials are not permitted to counsel, encour­age, procure or support a strike.

16. One of the employers with which Local 419 has a bargaining relationship is the Ontario Produce Company, Oshawa Foods Division ("Oshawa Foods"). It must be noted, however, that Oshawa Foods is not merely a separate corporate entity. There is also a separate bargaining unit, and a separate collective agreement. The "Oshawa Foods" premises are some miles away from the applicant's warehouse on Fenmar Drive.

17. At approximately twelve noon on Tuesday, April 30, 1991 the employees of Oshawa Foods (members of Local 419) began a lawful strike. At about 2:30 p.m., pickets appeared at the Fenmar warehouse and began to patrol near two of the warehouse entrances. The applicant's eve­ning shift was scheduled to begin at 3:00 p.m. The evening shift did not report for work.

18. The picketing continued, sporadically and with varying numbers of pickets, over the next few days. The picketing was ongoing as late as Saturday, May 4, the last day of the hearing in this matter. So long as the pickets were present, employees, including the respondents, refused to report for work as scheduled. When the pickets were not present, work proceeded as usual.

19. The applicant's employees are neither performing nor being asked to perform "struck work" - that is, work which would ordinarily be performed by the employees currently engaged in the lawful strike against Oshawa Foods. The applicant's employees are being asked to perform their regularly-scheduled duties, notwithstanding the strike and picketing in which their fellow members of Local 419 are currently engaged.

20. Much of the union's evidence consisted of the testimony of individual employees, who told the Board, under oath, why they "personally" had refused to cross the picket line and report for work. I do not think that it is necessary to record the details of that testimony here - not least because much of it was contradictory and portions were simply not credible. It suffices to say that (with a couple of exceptions) I am not satisfied that the employees' refusal to work was motivated by any genuine fear of physical injury or property damage, notwithstanding some of the witnesses' testimony to that effect.

21. Except in the case of Mr. Hebert and some profane invective on Tuesday evening, there were no threats, no incidents of violence, and no actual, or real threat of, property damage. On the contrary. The evidence establishes that the relationship between the applicant's employees and the picketers was quite amicable - a situation which is hardly surprising in the circumstances. Not only are the respondent employees members of the same local union and generally sympathetic to the objectives of their fellow workers, but also in the past, the applicant's employees have themselves picketed the premises of Oshawa Foods, and in that instance, both sought and received the support of the Oshawa Foods workers. Accordingly, it is hardly surprising that the applicant's employees might now be disposed to "return the favour" when their own workplace was picketed by fellow members of Local 419 seeking their support. And, in addition to this natural inclination to support members of the same local union, there is the well-established belief that trade unionists - espe­cially Teamsters - should honour the picket lines of fellow workers.

22. Paul White testified that when he heard about the possibility of a strike at Oshawa Foods, he phoned the applicant company to find out if there was any picketing at the Fenmar loca­tion, and advised that if there was a picket line he would not be reporting for work. Similarly,

Armand Lamonday told the company that if there was a picket line at the applicant's Fenmar warehouse, he did not intend to cross. White and Lamonday are both union officials. Neither employee mentioned any concern about safety, nor at the time that these remarks were made were they even confronted with a picket line. In cross-examination Mr. Lamonday said, in part:

"I'm a Teamster, I have been one for eighteen years, and I have never crossed a picket line... Teamsters don't do it... I don't care if there are one thousand guys [on the line] or only one little old lady in a wheelchair... I am not going to cross a picket line".

Mr. White said that he felt that the pickets had the same "belief in trade unionism" that he had, that he was not going to cross a picket line, and he did not expect any other employee to do so.

23. George Fyfe testified that upon encountering the picket line at about 2:50 p.m. on Tuesday, April 30 he rolled down the window of his car and after a brief conversation with a pick­eter advised that he did not intend to cross. Mr. Fyfe testified that he had earlier heard about the situation at Oshawa Foods on the radio and had decided that, if there was a picket line at the Fen­mar location he would not cross. Like the company, Fyfe predicted that if Oshawa Foods went on strike, picketers would likely appear at the Hickeson-Langs warehouse in Weston - just as he and his fellow workers had picketed the Oshawa Foods premises when they were on strike. Mr. Fyfe conceded in cross-examination that there was no actual threat, intimidation or coercion, nor any fear on his part. He said that respecting a picket line is a "convention when one works in a union shop"; its a part of the "code of being a trade unionist", and a demonstration of "working class solidarity".

24. Even those employees who initially raised the prospect of violence or property damage admitted in cross-examination that as a matter of trade union ethic and union solidarity they would not cross a picket line. Clay Bowring testified that he had never crossed a picket line and he never intended to do so. He said he wanted to help his fellow workers and the refusal to cross was not a "tough decision". He testified that "if there is a line up I'd never go through it... I wouldn't cross even if it was illegal... there were no threats... I was just asked to honour the line and I said yes... some days [union solidarity] sucks but it's necessary... it's important to recognize picket lines...".

25. Ron Scott testified that he "won't go over anyone's picket line". On the Thursday eve­ning, May 2, he called the company and upon learning that the pickets were still there he decided not to report for work. I am satisfied that safety had nothing to do with it.

26. I do not think that it is necessary to multiply the examples. With two exceptions set out below, I find that the employee respondents' work refusals were not motivated by any concern for their safety, but rather were an expression of support for, and solidarity with, their fellow Team­sters. I further find that, as union stewards, employees White, Lamonday, and Scrivo not only indicated to the company that they would respect the picket line and refuse to work but, by their example, encouraged and supported the refusal of other workers. Scrivo's advice to others that it was "their choice" was a complete sham when at the same time, he was making it clear that he did not intend to cross himself or expect anyone else to do so.

27. The participation of stewards White, Lamonday and Scrivo created an aura of authori­zation and encouragement which was not repudiated by any other official of Local 419, notwith­standing the company's advance notice of potential problems, its repeated request of the union's secretary-treasurer to ensure compliance with the employees' work obligations and the union's undertaking in November 1988. Those company requests continued throughout the course of these proceedings of which the union president and secretary-treasurer had notice and for which the sec­retary treasurer at least was occasionally present. Yet, at no time was there any effort by these individuals to take corrective action to ensure that the employees complied with the law. In short, there was both active participation in the work stoppage by local union officials, and a singular (and unexplained) lack of action by its most senior officials. In the circumstances, it is reasonable to infer that the work stoppage was "authorized" by the union.

28. The situation of Mr. Lamonday is a little different. I am satisfied that he threatened an unlawful strike when he indicated that he would respect the picket line should one appear. How­ever, as it turned out, he did not actually engage in an unlawful strike. He took his empty truck across the picket line the first time he encountered it, and on his second encounter was advised by the pickets that there was no need to cross because managers were driving the trucks across the line. On that occasion, Mr. Lamonday parked his truck and gave his keys to a supervisor who, without comment, drove the truck into the warehouse. While I have no doubt that Mr. Lamonday would have refused to cross the line had he been directed to do so, the fact is that he was not so directed and, accordingly, in his case, I cannot conclude that there was a refusal to work. On the other hand, his general refusal to cross the picket line and comments to that effect were a signal to others that they should do likewise.

29. Early in the morning of May 1, Wayne Hebert and his wife approached the picket line and were accosted by a group of somewhat drunken pickets who blocked his car, seized the steer­ing wheel, demanded to know "where the fuck he was going" and told him "you're not going any­where". Mr. Hebert decided that it was wise to withdraw at this point. This particular work refusal cannot be construed as participation in an unlawful strike.

30. The Board notes that the applicant company has withdrawn its complaint insofar as it relates to employees Hebert and Holland. Similarly, the company is content that the Board draw no adverse inference from the failure to testify of employees Durham, Pittman, Towers, or Glover.

31. On the basis of the evidence before me, I am satisfied that the respondent employees (save as expressly excepted above) have engaged in an unlawful strike, that such strike was autho­rized by Local 419, and that the strike was encouraged and supported by at least two union offi­cials: White and Scrivo.

V

32. Should I exercise my discretion to make a declaration and remedial directions? In my view, I should.

33. The labour dispute with Oshawa Foods is still ongoing, and so is the picketing which precipitated the unlawful work stoppage. That unlawful work stoppage is also ongoing as at the completion of the hearings. There is no basis for supposing that the picketing will stop, even though it might be regarded as "secondary" and therefore unlawful. As things now stand, there is no Court Order to limit or eliminate the picketing at the Fenmar Drive warehouse; and so long as the picketers are there, the respondents are likely to honour the picket line, as they have over the last few days.

34. Both before and throughout the course of this proceeding, the union has been urged to repudiate the employees' actions and take steps to ensure adherence with the collective agreement. There is no evidence that it has taken any such steps, notwithstanding the company's urging and its own undertaking in the previous proceeding before the Board. There is, therefore, a reasonable basis for the employer's concern that, without a Board declaration and direction, the illegal job action will continue or will be repeated whenever pickets appear at the Fenmar location. Finally, there may still be some residual belief, among some employees, that Article 8.02 permits them to refuse to cross picket lines established at their own place of work. That is not the case, and the issuance of a declaration and direction may therefore have some educational effect foreclosing future illegal employee action, or, at the very least, putting employees clearly on notice that a con­tinuation or repetition of such conduct may result in further legal proceedings with consequent civil or criminal sanctions.

VI

Direction and Order

35. Having regard to the foregoing, the Board hereby makes the following orders and remedial directions:

DECLARATIONS

(1) the Board declares that employees of the applicant company (includ­ing employees Scrivo, Sloan, Scott, Tarasco, Fyfe, Quin, White, Dault, and Bowring) engaged in an unlawful strike contrary to sec­tion 72(2) of the Act;

(2) the Board declares that the individual respondents, Scrivo and White, being union officials, supported or encouraged that unlawful strike contrary to section 74 of the Act;

(3) the Board declares that all of the named respondents (with the excep­tion of employees Holland, Hebert and Lamonday) have done acts which they know or ought to have known would, as a probable and a reasonable consequence, prompt other persons to be engaged in an unlawful strike contrary to section 76(1) of the Act;

(4) the Board declares that the respondent union has authorized an unlawful strike contrary to section 74 of the Act.

DIRECTIONS

(1) the Board directs that the respondent union, its officers, servants, agents and representatives, and any person acting on its behalf, cease and desist from calling, authorizing, or threatening to call or autho­rize an unlawful strike;

(2) the Board directs that employees Scrivo, Sloan, Scott, Tarasco, Fyfe, Quin, White, Lamonday, Dault, and Bowring, and any other employee who may have notice of this order, cease and desist from engaging in an unlawful strike; and in particular, cease and desist from their current concerted refusal to cross the picket line estab­lished at the company's premises at 500 Fenmar Drive, Weston, Ontario;

(3) the Board directs that union officials Scrivo and White and any other union official who may have notice of this order, forthwith cease and desist from supporting or encouraging an unlawful strike, or doing acts which they know or ought to know will prompt others to engage in an unlawful strike;

(4) the Board directs that all of the respondents (excluding employees Holland and Hebert) refrain from any act which they know or ought to know will prompt other persons from engaging in an unlawful strike;

(5) the Board directs that the respondent union and its officials forthwith provide a copy of this direction to all of the applicant's employees;

(6) the Board directs that the respondent union advise the members of Local 419 who are the employees of Oshawa Foods of this direction, and to draw to their attention section 70 of the Labour Relations Act which reads as follows:

70. 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.

(7) the Board directs that the respondent union provide a copy of the reasons for this decision to all employees of the applicant whom it represents, forthwith after the release of those reasons;

(8) the Board directs that the respondent Teamsters' Union 419 post copies of the Board's reasons for decision in prominent places where they will come to the attention of all members of the local union; and without restricting the generality of the foregoing, in the union's offices, and on any employee bulletin board to which Local Union 419 has access at the premises of any employer with whom Local Union 419 has bargaining rights.