Progistix-Solutions Inc. v. Communication, Energy and Paperworkers Union of Canada, 1999 CanLII 19999

[1999] OLRB REP. MARCH/APRIL 309

0056-99-U Progistix-Solutions Inc. ("Progistix"), Applicant v. Communication, En­ergy and Paperworkers Union of Canada ("CEP") and Chris Moran, Michael Davis, Christopher Connolly, Alexander Simins, Responding Parties

BEFORE: R. 0. MacDowell, Chair.

APPEARANCES: Brian P Smeenk, Karen Sargeant, Stephen Phinney, Joan Robertson and Eugene Sutherland for the applicant; Michael Wright. John Edwards and Erik Roll for the responding parties.

DECISION OF THE BOARD; April 15, 1999

1. This is an application under section 100 of the Labour Relations Act. The application was filed on Friday April 9, 1999. A hearing took place, in Toronto, on Monday April 12 and Tuesday April 13, 1999.

2. The application arises from certain problems that arose between Progistix and its employees, as a result of a lawful strike between Bell Canada and its employees. That strike began on April 8, 1999.

3. To make this decision easier to read, the parties will be referred to in abbreviated form. Despite the thorough and thoughtful arguments of counsel, I do not propose to burden these reasons with extensive legal analysis, quotes, or references to the case law. Certain of this material was already mentioned in the preliminary decision in this case, dated April 9, and in other decisions of the Board mentioned below. I will not repeat these references here. The labour relations context calls for a relatively quick decision, in the nature of a "bottom line"; and it seems to me that although the ultimate results are enforceable in Court, the decision containing those results should be written in such a way that the employees can understand the basis for the decision.

The allegations and the statutory framework

4. The applicant, "Progistix", is an employer who operates a business in Toronto. Progistix has a collective agreement with the CEP. That collective agreement was negotiated a few weeks ago, and contains the usual "no strike clause", by which the union and employees undertake that there will be no strike during the currency of the collective agreement.

5. Progistix contends that, despite the collective agreement, a number of its employees, including the named individual respondents, have engaged in, and are continuing to engage in, an unlawful strike - contrary to section 79 of the Labour Relations Act. Progistix further contends:

(1) that the "CEP", has called or authorized a strike and through its officials, counselled, procured, supported or encouraged that unlawful strike - contrary to section 81 of the Act;

(2) that the individual responding parties (Chris Moran, Michael Davis, Christopher Con­nolly, Alexander Simins and Jerry Long), who are employees of Progistix and are also officials of the CEP, have engaged in acts which they knew or ought to have known would cause that unlawful strike - contrary to sections 81 and 83 of the Act; and finally

(3) that the individual persons named (Moran, Davis, Connolly, Simins and Long) have engaged in the strike and together with other unnamed officials of the CEP and employees of Bell Canada, have also done acts that have caused the unlawful strike and, further, have sought, through the use of intimidation or coercion, to compel various employees (members of the CEP, members of the CTEA, and non-union workers) to refrain from exercising their rights under the Act or performing obligations under the Act - contrary to section 76 of the Act.

6. In summary, Progistix asserts that its employees are striking unlawfully, and that the unlawful strike is being caused and encouraged by the improper conduct of various union members and union officials.

7. Progistix seeks "Cease and Desist" remedies in respect of the strike itself, and in respect of certain picketing and related behavior that, it says, is producing the unlawful strike. Progistix also seeks postings and related orders, so that all employees will appreciate their legal obligations under the collective agreement and the Labour Relations Act.

8. I have already mentioned the "no-strike clause" in the new Progistix/CEP collective agreement. It provides that there will be no strike or lockout during the life of the agreement. Progistix employees should be familiar with that clause because the agreement has only recently been negotiated, and because the "no-strike clause" was in the old agreement as well. The provisions of the Labour Relations Act to which reference should be made are as follows:

[Declaration and direction by Board re unlawful strike]

100. Where, on the complaint of a trade union, council of trade unions, employer 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 ounseled 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 an 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, the Board may so declare and 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.

[Strike Definition]

1.(l) 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.

[Employee Prohibition]

79.-(l) 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.

(6) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock­out 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 lock­out.

[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.

86. 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.

87. 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.

(emphasis added)

9. The statute contains a comprehensive code that prohibits unlawful strikes and behavior designed to cause or encourage unlawful strikes. In addition, the statute makes the collective agreement a "peace pact" between the employer and the employees to whom the agreement applies. Those employees cannot go on strike until there is no agreement in force, the bargaining parties have completed the compulsory conciliation process, and the union has held a strike vote. There can be no strike at all during the life of a collective agreement.

10. What is a "strike"? The definition is very broad. It includes any concerted activity designed to restrict or limit output. Basically, it encompasses any collective refusal by employees to perform work which they are scheduled to do. And that includes a work stoppage that results from a concerted refusal to cross a picket line.

11. If employees "respect their fellow workers' picket line", and refuse to cross that picket line in solidarity or sympathy with the picketers, then the refusal to cross - be it complete or only for a time - constitutes a "strike" under the Labour Relations Act. The law is well settled in this area. See for example: Horton CBI Limited, [1985] OLRB Rep. June 880; or Nelson Quarry, [1995] OLRB Rep. June 825; the decision of the Supreme Court of Canada in Maritime Employers' Association Limited, 78 CLLC parag. 14171; and the initial Board decision in this case dated April 9, 1999.

12. There is nothing new about this proposition. That has been the law in Ontario for decades.

13. From a trade union perspective, it may be common and quite understandable to expect union members to respect a picket line set up by fellow union members. That is an aspect of union solidarity, and without solidarity there could be no trade union or effective collective bargaining. However, as a legal matter: a concerted refusal to cross a picket line, based upon sentiments of sympathy and solidarity, is nevertheless a "strike" within the meaning of the Labour Relations Act (albeit a kind of "sympathy strike" because the workers respecting the picket line are not trying to change their own wages or working conditions, but rather, are assisting other workers in that objective). That is why the Board said in its April 9th decision, issued before the hearing in this case:

In summary then, (and leaving aside for the moment the propriety of the picketing) if the applicant's employees are refusing to cross a picket line "in solidarity" with the striking members of the CEP, then that collective behavior would certainly appear to be a strike within the meaning of the Act.

(The Board made no finding that there actually was unlawful conduct, because, of course, there had been no hearing at that point.)

The business of Progistix and the geography of its workplace in Toronto

14. Progistix is a business that specializes in "logistics management" and provides "clients" with services of various kinds. Its major "clients" are companies in the communications and other high-tech industries, including, in particular, Bell Canada and certain subsidiaries of Bell Canada. Indeed, about 98% of Progistix's business involves servicing the "Bell family of companies". Bell Canada alone accounts for 50-60% of Progistix's normal business volume.

15. But Bell is not just a "customer" or "client" of Progistix. Progistix is itself part of the Bell family. Progistix is a wholly-owned subsidiary of Bell Canada. In fact, until relatively recently, the undertaking or "business" that is now "Progistix", was an organic "part" of the Bell Canada organiza­tion. It was not a separate employer.

16. Progistix was created by Bell Canada in late 1995 out of what was formerly the "materials division" (or department) of Bell. For its own business reasons, Bell wrapped a corporate envelope around a part of its own operation, which then continued as a separate company - if not exactly as before, then, inter alia, from the same Bell facilities in Toronto, providing similar services to Bell. Presumably, there are business advantages to this kind of corporate restructuring, because Bell is in the process of doing the same thing with other parts of its existing operation.

17. In any event, Progistix represented a "spin-off' of work which had been formerly carried out by Bell Canada employees, who were represented by the CEP and supervised and directed by Bell Canada management. Those workers became employees of Progistix which continued to service Bell and its corporate family at the Toronto location here under review.

18. When Progistix was formed, many of the Bell employees and Bell managers simply moved over to Progistix. So did the CEP and its collective agreement. There was no "successor rights" dispute. For the first year of its operation, Progistix actually operated under the collective agreement which the CEP had negotiated with Bell Canada, Progistix's corporate parent.

19. Bell Canada lists Progistix as being "part" of Bell's corporate and operational family – albeit a business "part" that is now operating through a separate corporate vehicle, and for labour relations purposes, (it is said) is subject to provincial regulation. (See Exhibit 9, a schematic document produced by Bell, entitled "Shaping the Future of Operations" that shows how Progistix fits into the Bell/BCE picture.) And because Bell Canada has retained full ownership of Progistix, the financial performance of Progistix affects, or is related to, the financial performance of the parent company. Moreover, as I have already noted, there is a continuing functional or business connection as well: Progistix supplies services to Bell and some of its now separately incorporated parts, which were once undertaken by Bell itself through its own materials division. Progistix, the wholly-owned subsidiary, now does for Bell what Bell once did for itself. The change in corporate framework has not totally altered the functional connections.

20. This functional relationship is reflected in the "business geography" of the Toronto building complex where Progistix shares space with Bell. That building complex is owned by O&Y Properties and has been a Bell facility since the 1960's. These business premises of Bell and Progistix are located at 20 Norelco Drive, in Toronto.

21. The main employee entrance to the shared premises is located at 20 Norelco Drive. This driveway leads to the main employee parking lot, and is used by employees of Progistix, Bell Canada and the other tenants. Most of these tenants are, like Progistix, members of the Bell family of companies. At least one of them is now independently owned, but continues to be operationally linked to Bell.

22. There is another entrance to the building off Signet Drive. The 85 Signet Drive entrance consists of two gates and a driveway: one an "in gate", and the other an "out gate" approximately 15 metres apart. These gates lead to a common laneway.

23. Progistix says that 85 Signet Drive is now the main shipping gate for Progistix, and is also used by some employees and management. According to Progistix, it is now used EXCLUSIVELY by Progistix. However, until a couple of weeks ago, this gate was used by Bell employees and suppliers.

24. On the eve of the strike, the Signet Drive entrance was designated for the exclusive use of Progistix's employees. A new sign was erected on April 7, the day before the strike began.

25. The old sign indicated that 85 Signet was an entrance for Bell and certain of its subsidiaries. According to Michael Neshevich, a long-time Bell employee at that location, Progistix was not mentioned on the old sign at all. Bell employees and suppliers regularly used the 85 Signet entrance, as could anyone else who worked at or visited the shared premises. The new sign says "Progistix­Solutions - Services and Employee Entrance", and, according to the company, the entrance is only to be used by its own employees and suppliers. To date at least, that seems to be true.

26. This initiative (changing the sign) was undertaken by Progistix in consultation with Bell Canada in order (it was hoped) to limit the potential impact of picketing on Progistix's operations. The union was not a part of these discussions. The union was surprised to learn, as the Bell strike began, that an area routinely used by Bell to conduct its business, was now being designated for Progistix only.

27. There is a third entrance to the Norelco Drive complex located about 200 metres north of the 85 Signet Drive entrance/exit. It is marked as the entrance to "83 Signet Drive, 87 Signet Drive, and 91 Signet Drive". It was constructed in January 1999 but was not opened until April 2, 1999 - about a week before the commencement of the Bell Canada strike. It has been designated for the use of other tenants of 20 Norelco Drive, and has also been used by Bell Canada and its contractors and suppliers since then. However, since there was no controversy or argument about this entrance, I will say no more about it.

28. It is difficult to describe the way in which Bell and Progistix are functionally intertwined, or to put into words the operational and geographic reality indicated by the floor plan of the shared building at 20 Norelco Drive. It suffices to say that it is somewhat like a checker board, with some squares occupied by Bell or its subsidiaries, and others occupied by Progistix. There are common corridors that all employees use, as necessary, to go from one area to another. Some of the work areas are separated by walls or fencing, and some are not.

29. Progistix's office area occupies most of the east side of the building looking out on Norelco Drive. However, at the southeast corner of the building (adjacent to the Progistix office space and "to the left" of the main entrance of 20 Norelco Drive) is a Bell area. At the northeast corner of the building (also adjacent to the Progistix office space and "to the right" of the main entrance) is a common cafeteria that is used by employees of Bell and Progistix. As one looks (or walks) west through the building, there are Bell areas, Progistix areas and areas occupied by other Bell companies. There is a separate Bell automotive building just south of the main building (and between two Progistix areas at opposite east and west ends of the main building), but part of the complex. There is a Bell repair area at the west end of the building, north of the access point from the 85 Signet entrance. Behind that location, (looking east) is a large Progistix work area.

30. According to Mr. Neshevich, Progistix employees occasionally work in Bell areas and sometimes work together with Bell employees on certain kinds of equipment or functions. Employees from all companies move to and fro throughout the complex, as necessary, to carry out their duties. There is a common waste disposal facility operated by Bell on behalf of all of its subsidiaries.

The basic labour relations landscape

31. At the warehouse and office facilities located at 20 Norelco Drive, Progistix employs approximately 270 unionized employees and 44 non-union administrative, technical and managerial personnel. Most of Progistix's employees are represented by the CEP. Some of Progistix's employees are represented by another union, the CTEA. And some of Progistix's employees are "non-union".

32. There are collective agreements covering the bargaining units of Progistix employees represented by the CEP and by the CTEA. The Progistix agreement with the CEP was signed a few weeks ago after a short strike. In the course of that strike there was picketing of the Norelco Drive location, and the Bell employees who worked there "respected the picket line" of their fellow union members who were on strike against Progistix. However, according to Mr. Neshevich, those Bell employees were in a lawful strike position themselves at that time. By contrast, it is clear that none of the Progistix employees are currently in a legal position to strike. Such strike would be contrary to the terms of their collective agreements, and also contrary to section 79(1) of the Labour Relations Act.

33. On April 8, 1999, the CEP commenced a legal strike against Bell Canada. The Bell Canada­CEP collective agreement applies to a number of facilities in Ontario and Quebec, including those facilities shared by Bell and Progistix. The Bell Canada strike is "lawful". It meets the legal require­ments of the Canada Labour Code, which is the federal statute regulating Bell's collective bargaining relationship with the CEP.

34. It is worth repeating that the employees working for Bell and the employees working for Progistix are represented by the same union, the CEP and its Local 26 - which is hardly surprising, given the origins and history of Progistix, the shared premises, and the functional interrelationship. As I understand it, there are common union officers "at the top", and there are separate stewards designated to look after the interests of the separate employee groupings. However, the situation poses something of a dilemma for the CEP, when one of these grouping goes on a lawful strike and the other union members are not themselves in a legal strike position: how does the union manage the different legal responsibilities of the two groups of employees?

35. Nevertheless, the fact remains that by signing a new collective agreement with Progistix several weeks ago, the CEP put the employees of Progistix in a separate legal position than their fellow workers who are employed by Bell. The Bell employees can strike and (I am told) were in a legal position to respect the picket lines of their fellow union members at Progistix, when those Progistix workers had their own strike a short time ago. However, the Progistix employees now are covered by a collective agreement, so that they cannot now strike in sympathy or support for the Bell workers.

The picketing and its consequences

36. On April 8, 1999 when the Bell strike began, the CEP established picket lines at all of the access gates to the business complex at 20 Norelco Drive - including the main entrance off 20 Norelco, and the other entrance off 85 Signet Drive that, the day before, had been declared to be for Progistix only. The picketers were Bell employees, supporting the Bell strike - although their picket signs did not specifically say that. The signs merely indicated that the CEP or its Local 26 were "on strike". The signs did not specifically identify that the target of the strike was Bell - as opposed to Progistix or the other Bell subsidiaries occupying the shared premises. On the other hand, the picketing was taking place at the main entrance to the building complex used by Bell (and others), and at the 85 Signet Drive entrance that had been used by Bell and its suppliers until the day before the strike. The Bell employees were picketing the customary entrances to their own workplace, and behind those entrances Bell is trying to carry on its business despite the strike.

37. Joan Robertson is a managerial employee of Progistix who was given the job of monitoring the picketing. Her evidence and observations were supplemented by those of Stephen Phinney, the Vice-President of Human Resources. Their testimony is not seriously disputed.

38. Ms. Roberston and Mr. Phinney testified that on the eve of the strike, all Progistix employees were sent a memo that advised them of the impending strike and informed them that they were expected to come to work, as scheduled, despite the strike against Bell by their fellow union members. The employees were reminded that they had a duty to report for work. However, it is not clear whether this memo was effectively distributed as widely as the company wished, or that the E-Mail to the same effect was received by all those to whom it was directed. In all likelihood, many Progistix employees did receive this communication, but some number of them did not.

39. Ms. Robertson arrived at work early in the morning of April 8 and April 9, and observed Bell picketers at the main entrance and at the entrance off 85 Signet Drive. The number of picketers varied over the course of the day from six to as many as twelve. There was no violence or overt obstruction.

40. That said, neither was there much movement of Progistix employees through the picket line.

41. Each entrance is served by an access road leading up to it. The picketing was located at the two entrances that were fed by these access roads. However, because of the picket line, Progistix employees trickled in to work over the course of the morning and early afternoon. Each car stopped, for a time, at the front of the picket line, so that there was a long line up of cars along each of the access roads leading to the two entrances. Some cars even pulled off to the side of the road and made no immediate effort to get in. Others waited patiently, in line, and also waited one by one, for a few minutes, when they got to the head of the line, in front of the picketers. As a result, on each day, many of Progistix's employees were hours late for work. The company was not fully staffed until mid-afternoon - even though most of its plant employees started at 7.30 a.m. and some started even earlier.

42. Despite the company's assertions, I am not satisfied that there was any evidence of intimida­tion, coercion or improper pressure exerted by the picketers. The cars stopped and, on occasion, there were picketers walking in front of and around those vehicles. But I am not satisfied that the drivers were being "intimidated". On the other hand, there would certainly be "peer pressure" to respect the picket line of the Bell employees, who had respected the picket line of Progistix workers only a few weeks ago; moreover, for reasons that I will come to in a moment, it is hardly surprising that each Progistix employee was prepared to wait for a few minutes, before proceeding through the line.

43. In the result, all of the Progistix employees did eventually cross the line, one by one, and come in to work. But not without a significant disruption of the Progistix operation. The cumulative effect of each short wait was that most employees of Progistix did not begin work until hours after their scheduled start time.

44. Ms. Robertson went down to the picket line and spoke to a Mr. Bingham (who is an executive officer of the CEP) and to a Bell employee "picket captain" who was identified only as "Steve". Ms. Robertson protested the waiting time, and pointed out that the Progistix employees were bound by a collective agreement and expected to come in to work as scheduled. She was told that, despite her submissions, there would be a 5-minute wait for each Progistix employee. When she protested further, she was told that there would be a 3-minute waiting time for each employee and "that was final".

45. And that is what happened - with the disruptive effects mentioned above. Sometimes the wait was 5 minutes, sometimes it was a little less, and on April 12, (as the hearing at the Board was ongoing) the wait was as long as 10 minutes. The cumulative effect was the non-attendance of most Progistix employees until hours after their scheduled start time. The cumulative effect was an employee work stoppage.

46. According to Bob Strang, a Vice-President of the CEP Local, this established waiting time was in accordance with a prearranged and understood internal union protocol (partially reflected in Exhibit 13 which is a document prepared by the union and widely circulated to its membership). According to Mr. Strang, employees approaching the picket line were to follow what the picket captain said - which in this case meant waiting for the prescribed time: three to five minutes. Entrance to the site on any other basis was to be a matter of negotiation between the individual seeking entrance and the picketers - perhaps with the assistance of management. Mr. Strang candidly conceded that the union knew there would be disruption of the Progistix operation, but he nevertheless expected that there would be a 5-minute wait for each employee. He was not prepared to ensure that Progistix employees got to work on time, or to have the picket captains advise Progistix employees to cross the line on any other basis than that described above.

47. In other words, Mr. Strang's evidence is entirely consistent with what other union officials said to Ms. Robertson, and what Ms. Robertson observed herself on April 8 and April 9. The union's expectation was that Progistix employees would each wait for 5 minutes, and would "respect the Bell picket line" as the Bell employees respected the Progistix line a few weeks ago (albeit in a different legal situation). Mr. Neshevich, the Chief Steward for Progistix and an executive of the CEP Local, also testified that he expected (and clearly hoped) that the members of the CEP who were Progistix employees would follow what the picket captain said, and would respect the Bell/CEP picket line.

48. The union's reply in this matter states:

The CEP agrees that every employee of Progistix and any other person having business at Progistix's premises has a legal right to enter and exit its premises. The CEP also agrees that its members who are employed by Progistix are required as a matter of law to cross a peaceful picket line and report for work at Progistix. The CEP has instructed its members about their legal obligations in this respect.

49. The problem is: there is no evidence that the CEP did, in fact, instruct its members of their legal obligations (be they employees of Progistix or Bell). On the contrary, the evidence is that employees of Progistix were each expected to wait for 5 minutes before crossing the line; and I am satisfied on the evidence before me, that this was the message that was actually communicated to them by the union and its officials - just as it was communicated to Ms. Roberstson.

50. The CEP has not instructed its Progistix members of their legal obligations. On the contrary, it has encouraged some of them to wait before crossing the picket line - which is to say, to engage in behavior that amounts to an unlawful strike.

51. On April 12, while the case was proceeding before the Board, there was a meeting at the Norelco site. The meeting was initiated by the landlord (O&Y Properties) and perhaps by the local police; and was attended by the representatives of a number of tenants of the shared facilities, including Progistix. I shall have more to say about that meeting later. At this point, I merely note that the union was seeking agreement from all of the companies that there would be stipulated delays of various lengths, depending on the status of the individual seeking access to the building. In this respect the union was seeking agreement for what its executive had already decided and was asking picket captains to convey to employees - including the employees of Progistix, who were bound by their collective agreement - to come in to work on time. These efforts are entirely consistent with what the union was already doing in its communications to the Progistix employees.

52. The individuals named in this application are all employees of Progistix, and "stewards" selected by the CEP to be responsible for dealing with the labour relations issues of employees of Progistix. On April 8, those stewards were seen from early morning until late in the morning (in one case), and early afternoon (in the other cases) walking up and down the line of cars talking to Progistix employees waiting to get in to work. It is reasonable to infer that they were communicating the same message that was being communicated by the picket captain at the head of the line and was communi­cated to Ms. Robertson as described above: that employees would be expected to wait 5 minutes before proceeding in to work. However, there is no direct evidence of what was said.

53. What can he noted is that these individuals were themselves employees of Pro gistix who were scheduled to work that morning, and that they did not come in to work, or make any effort to do so. They were participating in the work stoppage themselves. According to Ms. Robertson, there was nothing impeding them, they made no personal effort to cross the picket line, and, in fact, Davis and Simins left in a car and came back some time later. Whatever they were doing or saying, they were not working, and Progistix employees would be well aware of their status as stewards. The individual respondents, as a group, were not working - when that is what they were supposed to be doing that morning.

54. I exempt Mr. Long from the observations in the previous paragraph, because in his case, the company gave him permission to be off work, so that he could be a kind of trouble shooter in the event of problems on the picket line.

55. As I have already mentioned, there was a tenant meeting called on short notice by O&Y for the morning of April 12 - the day that the company and its representatives were at the Board for the hearing in this case. There was no notice of that meeting to Ms. Robertson or Mr. Phinney, nor did the union or anyone else try to ensure that these officials were aware of what was going on - even though it must have been apparent to the union that Ms. Robertson was responsible for picket line issues (as she had been during the Progistix strike) and that the company was challenging the disruption and delays caused by the picketing. By April 12 the union had received the present complaint, had retained counsel, had filed a reply and was involved in a hearing before the Board, the purpose of which was to deal with the disruption flowing from the picketing and related behavior of the CEP and its officials. And it was perfectly plain to the union that the company was not agreeing to any delay at the picket line. It was alleging before this Board that such delay was unlawful and should be prohibited.

56. The individual (Mr. Siddock) who attended the O&Y meeting for Progistix was a health and safety representative who had been asked by Ms. Robertson to keep an eye on things while she was at the Board. Mr. Siddock initially told those present that he had no authority to agree to any picketing protocol that involved delaying Progistix employees crossing the picket line (what the proceeding before the Board was about). This was met with a retort from the union to the effect that this "refusal to negotiate" would be communicated to the picket line, and that Mr. Siddock would he responsible for anything that happened next. Against that background, Mr. Siddock agreed to the 5-minute delay that the union was seeking - and which the company was then challenging in these proceedings. But there were no communications between Mr. Siddock and the company, and the company officials at the hearing were not sure what was happening or what was being agreed to back at the workplace. They only learned about it later.

57. This so-called picketing protocol was supposed to be put in writing and signed by the union and all of the companies involved. It was not signed by Progistix, whose officials rejected the union's proposal as soon as they learned about it. Had they not been at the Board contesting the lawfulness of this very union demand, there is no doubt that it would have been rejected even earlier. I cannot say that there was any agreement to what the union was proposing in the general meeting to discuss a picketing protocol.

Discussion and Decision

58. On the basis of the evidence before me, I have no doubt that the employees of Progistix have engaged in an unlawful strike. There was a decision of the employees to respect the picket line of their fellow union members - not completely, but for a few minutes each, with the cumulative effect that some large numbers of them did not attend work in a timely way. Those employees were engaging in an unlawful strike.

59. As employees, the named individuals (with the exception of Mr. Long who was allowed to be off work) also participated in that unlawful strike. As stewards, their participation would reasonably encourage others to do so as well. And while there is no direct evidence of it, it is reasonable to infer that they were communicating or seeking to implement the "waiting policy" that had already been decided upon by the officials of the union (and was described to the Board by Mr. Strang). Whatever else they were talking about, it is reasonable to infer that they were telling Progistix employees what other union officials were telling Ms. Roberston. And the employees' behavior certainly indicates that they "got the message".

60. I am also satisfied that the CEP, as a union, called or authorized the unlawful strike of the Progistix employees - which is to say, called upon and sanctioned the delays of employees. That is the import of the "5-minute delay arrangement" that had previously been agreed upon, that was communicated to CEP members, that those members were expected to honour, and that the Progistix employees clearly did honour. The situation is a little unusual in that the same CEP union officials who could properly call or authorize a lawful strike of Bell employees (under federal legislation) could not do the same thing in respect of Progistix employees under the Labour Relations Act. However, I do not think their dual role insulates them from liability under section 81 of the Act. In my view, they have "authorized" the unlawful strike of Progistix employees in the manner described above, and that behaviour is not immunized by section 83(2) of the Act - which, it should be noted, has no express application to the behavior described in section 81. In the circumstances of this case lam not prepared to "read in" a limitation that the Legislature has not prescribed; and to the extent that this may be seen to be inconsistent with certain opinions (or at least an "extension" of the opinions) expressed in two earlier cases (Canteen of Canada, [1978] OLRB Rep. March 207 and Consolidated Bathurst, [1982] OLRB Rep. Sept. 1274), I decline to follow them. While section 83(2) may well protect union officials (who are also "persons") in respect of certain of their behavior "in connection with" the Bell strike, or if they were themselves picketing in connection with the Bell strike, I do not think it immunizes them from the prohibition against calling or authorizing or encouraging an unlawful "sympathetic strike" in respect of another employer and collective bargaining relationship for which they are responsible.

61. Similarly, I am satisfied that officials of the CEP have counselled, procured, supported, or encouraged an unlawful strike by Progistix employees. But let me be clear. I am not at this point focusing on the picketing, per se - which of course these union officials are also organizing and supporting. Rather, I am focusing on the orchestrated and prearranged response to that picketing to which the Progistix employees are expected to adhere and to which they did adhere. Quite apart from the picketing itself, it is that arrangement and orchestration that amounts to a breach of section 81 of the Act by the CEP and its officers. And in my view, THAT is not protected by the exception found in section 83. In this sense, section 81 may impose a more specific prohibition on the behavior of union officials than is contemplated by the more general restriction and exemptions found in section 83.

62. The picketing itself is much more problematic, because Progistix contends that the Board can and should eliminate the picketing at the "dedicated gate" at 85 Signet Drive, because it is manifestly "causing" the unlawful strike of Progistix employees in response to it. If the pickets were removed at 85 Signet, there would be no strike in response to the pickets. Counsel submits that by designating the gate, the company has achieved the analytical equivalent of an entirely separate and remote geographic location - the situation that was before the Board in Consolidated Bathurst, above. Progistix also relies on the analysis in Sarnia Construction, [1982] OLRB Rep. June 922, where the Board limited the picketing on a construction site to a designated gate for the struck trade (plumbers), and prohibited the picketing anywhere else - on the theory that picketing anywhere else or directed at anyone else could not be "in connection with" the ongoing strike by members of that trade.

63. However, in my view, the circumstances here are distinguishable from the situation in Sarnia Construction or Consolidated Bathurst; and are more like those in Bird Construction, [1985] OLRB Rep. March 359 (where, as it happens, I was also the adjudicator and was called upon to examine the law - an examination which, as noted, I do not propose to repeat here). I also note the views of Chair Carter in Canteen of Canada, that the focus of the current legislation is not on picketing (a word not found in the statute) but on the unlawful consequences of picketing. In this respect the Board's express authority to deal with picketing is much more limited than the British Columbia Board under its governing legislation, and, indeed, is much more limited than this Board's authority used to be under "Bill 40" - now repealed. Under Bill 40, the Board had direct powers to balance interests in certain picketing situations; however those express powers are no longer available. The legislative direction has changed.

64. In Sarnia Construction the picketing plumbers were directing their actions against other trade contractors (carpentry contractors, say) who had no relationship with the plumbers' union, and whose employees were not doing plumbing work. The work of the striking employees was not being done on the site at all. Thus, noting that these other contractors (the applicants for relief) were on the site by an accident of geography and were wholly unconcerned with the plumbers' strike, the Board gave the then novel relief of confining the picketing to a particular gate and preventing the picketing anywhere else on the site - so long as the struck work was not being done on the common site. Yet, interestingly, the Board was not inclined to give relief to employer-applicants who were multi-trade contractors (i.e. who had a relationship with the plumbers union as well as other unions), and the Board was very careful to say:

This case should not be taken as a signal to parties outside the ambit of province wide construction industry negotiations to begin establishing reserved gates in an effort to insulate themselves from primary picketing. This decision is very much centered on the needs and practices of the construc­tion industry.

65. In Consolidated Bathurst the union, on a lawful strike in one location, began picketing the premises of a geographically remote competitor of the struck employer, and the Board held that the competitor was wholly unrelated to the collective bargaining dispute with the struck employer. There was no common site issue, and the Board was not prepared to say that a competitor supplying the same customers was, for that reason alone, an "ally" of the struck employer. The Board found that the picketing was not connected with the lawful strike so as to fall within the exception of section 83(2). The employer being picketed was "wholly unconcerned" with the strike going on against someone else at a different location. Thus the picketing could be prohibited under section 83(1).

66. When one considers the situation here, and returns (as we must) to the actual words of section 83(2) immunizing acts done in conjunction with a lawful strike, it is apparent that the circum­stances are very different from either Sarnia Construction or Consolidated Bathurst.

67. In the instant case, the Bell picketers are picketing their own work site where the struck employer continues to operate, using its managers, and where Progistix also continues to operate facilitating the continuing business activities of Bell. At the Norelco site, the business of Progistix is functionally and geographically intertwined with Bell; moreover, as noted above, Progistix is a wholly-owned and controlled subsidiary of Bell (hardly "wholly unconcerned" - to use the words of the Board in Sarnia Construction or Consolidated Bathurst). The relationship is even closer than in Bird Construction where the Board permitted the striking industrial workers to picket all of the gates to their work place.

68. With respect, I do not think that designating a gate on the eve of the strike erases this reality. It is not as if the gate was always so designated, or Progistix were running, say, a book store whose employees had little interaction and connection with Bell employees. The work of the Progistix employees is geographically proximate and functionally integrated into the work of the striking Bell employees (now being done by non-striking Bell employees), and what Progistix is doing is facilitating the normal operations of Bell on the site that they share - just like an outside supplier who may visit the site to deliver goods being used by Bell in its continuing operation would be facilitating those operations at the Bell location. This is very different from the situation and the American cases relied upon by former Chair Adams in Consolidated Bathurst and Sarnia Construction [our statute is very different too]. Moreover, at least some of those American cases seem to distinguish between permanent gates and those set up to insulate the struck employer from the ordinary exigencies of primary picketing, and between third-party employers who are on site facilitating the normal operation of the struck employer and those who are truly and totally uninvolved (see for example: General Electric, 366 U.S. 667 and Phelps Dodge (1961), 48 LRRM 2106).

69. However, I do not propose to engage in an examination of American law and practice, or to further examine the distinguishable decisions of this Board in Sarnia Construction or Consolidated Bathurst. It suffices to say that on the facts before me, the picketing by Bell employees at the 85 Signet Drive entrance to their workplace is "in connection with their lawful strike ", despite the sign erected on April 7 changing the designated use for that gate. It is picketing of and in connection with Bell premises and Bell operations, despite its spillover effect on Progistix and its employees.

70. The Board is not prepared to limit or restrict the picketing by Bell employee members of the CEP at the 85 Signet entrance. (And if it is said that, strictly speaking, the "strike" is in federal jurisdiction, the provincial legislative direction is nevertheless clear and I would reach the same result as a matter of discretion). No limitation is sought in respect of the main entrance off 20 Norelco Drive.

Remedy

71. For the foregoing reasons, the Board finds that the union and its officials have breached section 81 of the Act, the Progistix employees have breached section 79, and the named individuals (who are employees and subordinate union officials) have done both.

72. The issue then is what remedy, within the scope of these findings, will facilitate, as best the Board can, the legal requirements of the Act.

73. I put it that way, because, unlike the situation in British Columbia or the situation under Bill 40 (now repealed), the Board's direct powers to regulate picketing or "balance interests" are quite limited.

74. Nevertheless, it is apparent that at least some of the problem may arise because the employees of Progistix may not know and may not have been told by anyone that a concerted refusal to cross a picket line is an unlawful strike, unless, like their fellow union members working for Bell, those respecting the picket line just happen to be in a lawful strike position as well (or their employer isn't prepared to press the issue). In all the circumstances, therefore, the Board makes the following directions.

75. The Board directs that employees (including the named employee respondents but excluding Mr. Long) forthwith cease and desist from engaging in an unlawful strike. The Labour Relations Act and the collective agreement both require that employees report to work as scheduled. Employees are not entitled to decide to delay crossing the picket line, as they have been instructed to do by their union officials.

76. The Board directs that the CEP and its officials forthwith cease and desist from counselling, procuring, supporting or encouraging an unlawful strike by Progistix employees.

77. The Board directs the CEP and its officials to advise employees that they must fulfill their obligations under the collective agreement and the Labour Relations Act (i.e. what the reply to this application says that the CEP has already done, but what I find that it has not done).

78. In particular, the Board directs that the CEP advise its members, including the Progistix employees, that: the Progistix employees are obliged to come to work as scheduled, despite the picket line; and that the Progistix employees are not entitled to delay crossing the picket line in accordance with instructions received from or on behalf of the union.

79. The CEP is directed to instruct its officers and members that they must not counsel or encourage the Progistix employees to delay crossing the picket line in this way.

80. The CEP and its officers are directed to provide a copy of the Notice attached to this decision to all of its members working on the site, whoever they currently work for. The employer is also directed to supply a copy of the Notice to Progistix's employees.

81. The CEP and the applicant employer are both directed to make copies of this decision, and the earlier one dated April 9, 1999, and make them available to all employees who may ask for them.

Final comments on "intimidation or coercion" and the use of picketing protocols

82. The Board is not satisfied on the evidence before it that there has been any intimidation or coercion in respect of Progistix employees. So it is unnecessary to comment on the potential application of section 76 of the Act.

83. Finally, picketing protocols of the kind mentioned above are often a sensible thing for bargaining parties to consider - even though, for the reasons also outlined above, I am unable to conclude that the company and the union actually concluded such arrangement in this case. However, if a union and employer do enter into such arrangement voluntarily (especially if it is reduced to writing), it seems to me that the Board should not lightly interfere with the protocol, and should do everything that it can to ensure that the parties comply with it. Such voluntary protocol could certainly be a factor influencing the exercise of the Board's discretion under section 100, and if properly worded and signed, might also be made enforceable under the Labour Relations Act.

84. Accordingly, while I am not prepared to say that the above-mentioned protocol discussions should influence the result in this case, nothing in this decision should be taken as disapproving of efforts to conclude such voluntary arrangements - even if it results in some modification of the employees' obligations under their collective agreement or the Labour Relations Act.

NOTICE TO EMPLOYEES OF PROGISTIX-SOLUTIONS INC. AND TO THE

EMPLOYEES OF OTHER EMPLOYERS SITUATED AT 20 NORELCO DRIVE

On April 12 and 13, 1999 the Ontario Labour Relations Board held hearings to determine whether employees of Progistix had engaged in an unlawful strike by refusing, for a time, to cross the picket line located at the entrances to their workplace.

The Board was also asked to determine whether the union and certain union officials had acted unlawfully by encouraging Progistix employees to wait at the picket line for several minutes before crossing one by one.

Finally, the Board was asked to limit the picketing currently being carried out by Bell Canada employees in connection with their lawful strike against Bell Canada.

The Board refused to limit the picketing by Bell Canada employees.

However, the Board found that the delay at the picket line by Progistix employees consti­tuted an unlawful strike that was contrary to the recently signed Progistix collective agreement and the Ontario Labour Relations Act. The Board directed that this unlawful activity cease immediately.

The Board further directed that the CEP and its officials must not counsel or encourage Progistix employees to engage in an unlawful work stoppage of this kind.

Copies or the Board's two decisions are available, upon request from the employer and from the union.