0885-01-U Lafarge Canada Inc., Applicant v. Teamsters Local Union Local 141, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Douglas G. Pilkey, David Cotton, Mark Livingston and Gary Smith, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Joseph Liberman, Daniel Leone, John O’Brien and Mark Schutzbach for the applicant; Eric del Junco, Doug Pilkey, Gary Smith, Mark Livingston and David Cotton for the responding parties.
DECISION OF THE BOARD; July 3, 2001
Introduction
This is an application under section 100 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). By decision dated June 21, 2001 the Board abridged the time for the filing of a response and set a hearing date for June 22, 2001. The matter was heard on June 22 and June 23, 2001. A brief decision was issued on June 23, 2001. This decision is a more complete version of that decision.
The applicant (“Lafarge”) operates a number of ready-mix concrete plants in and around the London area. The responding party Teamsters Local Union 141, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“Local 141”) represents employees at a number of these plants. Local 141 represents bargaining units of employees who include truck drivers employed at Tillsonburg, Ontario. It also represents a bargaining unit of employees, including truck drivers, employed at and out of the London and St. Thomas plants. Although this is a single bargaining unit, it covers both locations.
The employees at Tillsonburg are engaged in a lawful strike. The employees at London and St. Thomas are covered by a collective agreement which expires March 31, 2003. They are not engaged in a lawful strike and are not in a lawful strike position.
Local 141 and the Tillsonburg employees have picketed the plant at Tillsonburg. They have also picketed the jobsites of certain customers of Lafarge engaged in construction projects who would normally have been supplied with ready-mix concrete from the Tillsonburg plant. There is no complaint by Lafarge about that activity. The Tillsonburg employees and Local 141 have also erected a picket line at the London plant. Lafarge takes the position that Local 141 is entitled to picket at the Tillsonburg plant, the jobsite of any customer who would, but for the strike, be supplied by the Tillsonburg plant, at any plant where concrete is mixed and shipped to a customer who would ordinarily be supplied by the Tillsonburg plant. (To date, only the St. Thomas plant has mixed concrete for “Tillsonburg customers”).
Lafarge does assert that the Act has been violated in three different instances:
(1) that the picketing at the London plant by Teamsters Local 141 and the Tillsonburg employees is unlawful;
(2) that employees in the London-St. Thomas bargaining unit are engaged in an unlawful strike;
(3) that Local 141 has called or authorized an unlawful strike of the London-St. Thomas bargaining unit, and that the other responding parties have counselled, procured, supported or encouraged this unlawful strike.
- In the June 23 decision, I found that some of the employees from the London-St. Thomas bargaining unit were engaged in an unlawful strike. These employees included Mark Livingston, an employee of Lafarge and assistant steward for Teamsters Local Union 141. I further found that this unlawful strike was called or authorized by Local 141 and that Douglas Pilkey had counselled, procured, supported or encouraged the unlawful strike activity and has threatened further similar activity. The reasons for these findings follow.
The Facts
The applicant called three witnesses, Mark Schutzbach, Assistant Manager of Production in London, St. Thomas, and Tillsonburg, Kevin Graham, Plant Superintendent for the London plant, and Trevor Harmer, Assistant Plant Manager for Tillsonburg, St. Thomas and London. The responding parties called no evidence. Mr. Pilkey was at all times present in the hearing room, on his own behalf and as a business representative of Local 141. I accept the evidence of Messrs. Schutzbach, Graham and Harmer. Their evidence disclosed the following facts.
On June 18, 2001 Local 141 set up a picket line at a construction project on Eden Line, near Tillsonburg. Lafarge would have supplied this project with ready-mix concrete from the Tillsonburg plant, but for the strike. The picketers carried picket signs bearing the words “Teamsters Local 141 on strike”. Mr. Pilkey was on the line. He spoke to Mr. Schutzbach and told him that the line was simply an “information line” and that he simply wanted to talk to the drivers from St. Thomas and that he would then allow them to proceed. He did so and the truck made its delivery after a short delay. After the driver had unloaded, Mr. Pilkey said to Mr. Schutzbach “Don’t you think we’ve been fair to Lafarge today?” Schutzbach agreed that the union had been. Mr. Pilkey went on to say, “If the strike is prolonged, this situation will have to change and things will get worse”.
On June 20, 2001 Local 141 and members of the Tillsonburg bargaining unit erected a picket line at the entrance to the London plant. The line was there from approximately 6:30 a.m. Again, Mr. Pilkey was part of the picket line. Employees in the London yard were scheduled to start between 7:00 and 7:30 a.m. Truck drivers who normally worked from the London plant refused to cross the picket line. Mr. Schutzbach spoke to some of them who indicated that they refused to cross a picket line. The police were called but took no action, as they were satisfied that the line was only an “informational picket line”. Mr. Schutzbach at one point asked Mr. Pilkey to instruct one employee, Gary Smith, to cross the line. Mr. Pilkey refused. Maurice Dignard (steward for Local 141) and Mark Livingston (assistant steward for the London-St. Thomas unit) were scheduled to start work that day at 7:00 a.m. and 7:30 a.m. respectively. They were among the drivers refusing to cross the picket line.
Kevin Graham also spoke to Mr. Pilkey on the morning of June 20. Mr. Pilkey told him that there would be no concrete delivery that day. Mr. Graham testified that there were a number of businesses or customers who called on the morning of June 20 for the delivery of concrete that day seeking to order it from Lafarge. He felt it necessary to decline the business as he could not guarantee delivery. Some deliveries were, in fact, made the following day. There may or may not be “back charges” to Lafarge from customers as a result of the delay to some deliveries from the London plant.
Employees began to enter the London plant by 7:50 a.m. and to commence their work. Three employees who had returned home reported into the plant by 11:00 a.m. to perform their deliveries.
Trevor Harmer attended at the jobsite of a customer of Lafarge constructing houses in the “Southridge subdivision project” near Tillsonburg. Again, a picket line had been erected. David Cotton, a steward from Tillsonburg and an employee working at that location, was on the line. Steve Bernaith, an employee from the St. Thomas plant, was there with a load of concrete. He refused to cross the picket line. Mr. Harmer got into Mr. Bernaith’s truck and called Mr. Bernaith’s steward, Maurice Dignard. They spoke to Mr. Dignard on a speaker phone from the truck. Mr. Bernaith asked if he should cross the line. Mr. Dignard’s reply was that he didn’t want to say either way. He said that Mr. Bernaith “did not have to cross the picket line and the company cannot punish you if you don’t”. They then called Douglas Pilkey. Mr. Pilkey suggested that Mr. Bernaith should not cross the line. Mr. Harmor said to Mr. Pilkey “Are you telling him not to cross the line?” Mr. Pilkey’s response was “Yes, do not cross the picket line”. Mr. Bernaith did not cross the picket line. He was able to deliver some of the concrete in his load to a nearby site, but returned to the London plant with the bulk of it, which was dumped as unusable.
Statutory Provisions
This application is brought pursuant to section 100 which provides:
- 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 counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do 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.
The definition of strike, and the elements which render a strike lawful or unlawful under the Act are contained in other provisions of the Act. Those relevant to this decision are:
- (1).......... In this Act,
"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow‑down or other concerted activity on the part of employees designed to restrict or limit output.
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.
(1) No person shall do any act if the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock‑out.
(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock‑out.
- No 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.
Decision
The London-St. Thomas employees
The activities described above clearly constitute a strike by employees of the London-St. Thomas bargaining unit and by Teamsters Local Union 141. Members of this bargaining unit, in concert and pursuant to a common understanding, refused to perform work assigned to them. Local 141 clearly called this strike, and Mr. Pilkey counselled and encouraged it. Since the London-St. Thomas bargaining unit is not in a lawful position to strike, this strike is unlawful.
Although the responding parties argued that the work refusals were a minor inconvenience to Lafarge which, in their submission, had no economic impact on it, this does not change the essential nature of their activity. It does not matter that some of the work refusals were of a temporary nature or, at best, constituted a slowdown (see Progistix-Solutions Inc., [1999] OLRB Rep. Mar./Apr. 309 and McDonnell Douglas, [1985] OLRB Rep. Dec. 1750). Even if all of the work scheduled to be done on the 20th was accomplished at a later time (and I find that there was, in fact, a loss of work and possible economic losses accruing to Lafarge from the late delivery or non-delivery of concrete), the concerted refusal of employees to perform work in accordance with the common understanding meets the definition of “strike” in the Act. The fact that the inconvenience to the employer may be temporary or minor is irrelevant: see State Contractors Inc., [1985] OLRB Rep. Aug. 1304.
Counsel for the responding parties argued that on the Southridge subdivision, the only employee who refused to work was Steve Bernaith and therefore the action was not done in concert with other employees. However, it is clear that he did so in accordance with his understanding of the purpose of the picket line, and at the implicit or explicit request of Maurice Dignard and Robert Pilkey. This constitutes a refusal in accordance with the common understanding. The fact that only one employee refused to work does not change the character of that refusal: Acme Building and Construction Limited, [1975] OLRB Rep. Nov. 810 at para. 13.
Counsel for the responding parties made reference to the following provisions of the collective agreement covering the London and St. Thomas plants:
8.03 It shall not be considered a violation of this Agreement, however, if any member of the Union should refuse to delivery materials to any project or location where an actual work stoppage or strike exists and a picket line or placard line has been established for the purpose of communicating the fact of such work stoppage or strike, providing such work stoppage or strike is not contrary to the provisions of the Ontario Labour Relations Act.
Counsel did not, of course, suggest that this was a defence to an allegation of an unlawful strike. Clearly, the parties are not able to contract out of the Act. He did suggest that the presence of such a clause gave rise to a presumption that employees who refused to cross a picket line did so as a matter of individual choice, relying on Article 8.03 and therefore this activity was individual rather than in concert. First, the Board rejects the assertion that the presence of Article 8.03 creates any kind of factual presumption about the state of mind of persons refusing to cross the picket line. Even if it did, however, the fact that an employee’s response to a request (implicit in the existence of a picket line) not to perform work at the site being picketed is, in itself, an act “in accordance with a common understanding”. That common understanding is created by the picketers and the employee. It need not be exclusively among employees who are refusing to perform the work.
- Counsel for the responding parties asserted in argument that the activity of Local 141 and the London employees was protected by what he called the “ally doctrine” found in some of the Board’s jurisprudence based on section 83(2). In fact, this is rarely an issue before the Board. In Consolidated-Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274, the Board reviewed American caselaw which underlies this doctrine. Without finding that it was appropriate to apply it in such circumstances in Ontario, the Board found on the facts before it that those facts did not bring the union parties in that case within the doctrine. Interestingly, the Board has (without using the term “ally”) applied the doctrine in at least one case. In Sutherland-Schultz Limited, [1988] OLRB Rep. June 632, the Board dealt with a situation where other subcontractors were performing the work that had previously been performed by a union contractor (McCall Contractors Inc.) before the commencement of a lawful strike. At paragraph 17 of that decision, the Board said:
In the context of this application, it was my view that, by attempting to avoid the affect of the Carpenters’ strike by resorting to what it proceeds to be its rights under its contract with McCall, the applicant involved itself in that labour dispute. Accordingly, it was not open to the applicant to plead that it is an innocent bystander. Further, I observed that if such an avenue was open to the parties in the position of the applicant … it would have very far-reaching consequences, including, arguably at least, making a trade union’s right to strike and to picket in support thereof largely illusory.
The Board therefore found that picketing by the Carpenters’ union was in connection with a lawful strike within the meaning of section 83(2).
- However, whether or not the doctrine ought to be applied in Ontario, it has no application to the facts of this case. The furthest extent of the “ally doctrine” is to extend the ambit of section 83(2) to bring within the phrase “any act in connection with a lawful strike”, picketing activity directed at an entity other than the employer with whom the striking union has bargaining rights. That is, strike activity in connection with a lawful strike (usually picketing) is directed at a party other than the employer party to the collective agreement or Board certificate. The “ally doctrine” does not protect those who respond to the strike activity. If employees, such as the employees of Lafarge at the London plant, choose to engage in a work stoppage, they are not engaged in activities in connection with a lawful strike. They are engaged in an unlawful strike. The Board dealt with a similar argument in Blythyonge Developments Inc., [1996] OLRB Rep. May/June 336. In that case, Bricklayers and Masons Independent Union Local 1 was engaged in a lawful strike. It alleged that the builder (Blythyonge) was acting as an ally of the struck employer (Gottardo). However, it was Labourers Local 183 which threatened to picket the job site. An application was brought naming Labourers Local 183 as responding party. In that case the Board said:
- It is not evident to me that the “ally doctrine” has any application to these facts, keeping in mind that it is Local 183 which is the focus of this application. On the facts, there is no question that Local 183 was not in a legal strike position vis-à-vis Blythyonge. Assuming, for the purposes of argument, that Blythyonge and/or Birch Hill were “allies” of Gottardo, that relationship would not cause an otherwise unlawful strike by Local 183 to become lawful. Quite simply, Local 183 cannot avail itself of the “ally doctrine” on the facts of this case. Further, this argument must also fail for the simple reason that section 83 of the Act does not apply to trade unions. In Consolidated-Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274, the Board considered the applicability of the predecessor provisions to section 81 and 83 and in that regard made the following observations at paragraph 20:
Section [81] only refers to a trade union in the context of the prohibition against the calling or authorizing or threatening to call or authorize an unlawful strike. None of the trade unions named in this application could call or authorize an unlawful strike of the applicant’s employees within the meaning of that section in our view. None of the trade unions represented such employees and the establishment of picket lines, while provoking or causing an unlawful strike cannot be characterized as an act of calling or authorizing. To this extent we agree with the respondents that calling or authorizing an unlawful strike suggests that the trade union in question has authority over the employees who are engaging in an unlawful strike. The C.P.U. and the E.C.W.U. have no such authority. Similarly, section [83] cannot be breached by a trade union in that it directs that “no person shall” and, in the context of this legislation, the term “person” is not a reference to a trade union … [emphasis added].
If section 83(1) of the Act cannot be breached by Local 183, then the doctrines or principles established by the Board pursuant to section 83(2) of the Act to legitimize certain strikes called, authorized, or threatened by a trade union cannot apply to Local 183.
The Board specifically declined an invitation to extend the application of the “ally doctrine” to protect activity by the employees of the “ally” in response to the lawful strike activities in which the lawfully striking employees are engaged, see Progistix-Solutions Inc. supra at paragraph 60. If the employees of the “ally” are not in a lawful strike position, then any action on their part which meets the definition of a “strike” is and remains unlawful.
For these reasons, the Board made the declarations it did in the June 23 decision. For greater clarity, these declarations and directions are re-stated at the end of this decision in a slightly more precise form.
Tillsonburg employees
- With respect to the picket line erected by Local 141 and the members of the Tillsonburg bargaining unit at the London plant, the Board finds that this activity by those parties is not a violation of the Act. The purpose of the picket line was to put pressure on Lafarge in connection with the strike at the Tillsonburg plant. On the evidence I heard, that was the only objective of the picketing. No motive other than pressuring Lafarge to settle the Tillsonburg collective agreement was behind the actions of Local 141 or the picketers. Therefore, this was an activity done in connection with a lawful strike and is protected by section 83(2). The Board has rarely had occasion to deal with this type of fact situation. In Canteen of Canada Ltd., [1978] OLRB Rep. Mar. 207, the Board analyzed the application of the Act to facts very similar to this one and concluded as follows:
This tentative conclusion is supported by those provisions of the Act intended to confine labour disputes. Admittedly, it is possible to argue, as did counsel for the applicant, that the wording of section [81] might be broad enough to prohibit any picketing that causes others to engage in an unlawful strike, whether such picketing is in support of a lawful strike or not. This one provision, however, should not be read in isolation from the other provisions of the Act. The overall statutory scheme to confine labour disputes, in the Board’s view, suggests that section [81] must be interpreted more narrowly.
More specifically, the prohibition in section [81] must be read together with the qualified prohibition set out in section [83]. Section [83], in one respect, is the more sweeping prohibition of the two, enjoining any person from acting in such a way as would cause other persons to engage in an unlawful strike. This prohibition is not restricted to trade unions, councils of trade unions, or union officials, but applies to any person. Moreover, it refers to any act that would likely cause others to engage in an unlawful strike, and not just to conduct amounting to counselling, supporting, or encouraging of the strike. In other words, under section [83], it is not necessary to establish that the conduct was intended to bring about an unlawful strike but only that an unlawful strike is a reasonable and probable consequence of the Act. This sweeping prohibition, however, is expressly qualified by subsection (2), making it inapplicable where the act in question is done in connection with a lawful strike or lock-out.
The prohibition in section [83] is broad enough to enjoin any form of picketing not done in connection with a lawful strike and causing other employees to engage in an unlawful strike. Section [81], on the other hand, is only wide enough to catch such picketing where it can be characterized as counselling, procuring, supporting or encouraging of that strike by a union, council of unions, or trade union officials. It would be somewhat incongruous if, when the more comprehensive prohibition against picketing is rendered inapplicable, the less comprehensive prohibition remains operative. The result would be a situation where the Board could restrain picketing in connection with a lawful strike where official union support for that picketing is present, but not in those cases where this element has not been established.
In the Board’s view, the Legislature intended section [83] to regulate primarily the conduct of picketing activity. To the extent that section [81] also touches upon picketing, it must be read subject to section [83]. Picketing in connection with a lawful strike, therefore, even though it may cause other employees to engage in a strike, does not fall within the conduct proscribed by section [81].
This view is consistent with the general approach that this Board has taken in applying those provisions of the Act intended to confine labour disputes, sections [79], [81], [83], and the concomitant remedial provisions, sections [100], [101] and [144]. These provisions have been interpreted by the Board as establishing an unqualified restriction upon untimely work stoppages or other disruptions of work of a concerted nature, regardless of their underlying purpose. See Domglas Ltd., [1976] OLRB Rep. Oct. 569, Nelson Crushed Stone, A Division of King Paving and Materials, A Division of Flintkote of Canada Ltd., [1977] OLRB Rep. Nov. 713. The latter decision, involving refusals to cross a picket line set up in connection with a legal strike, is of particular relevance to the broad question raised in this case.
Indeed, the wording of section 83(2), which refers to “any act in connection with a lawful strike” is very broad. It should also be noted that the section is limited in its effect to creating an exception to the broad wording of section 83(1). That is, it is an exception for the purposes of the Labour Relations Act, 1995, a statute which does not regulate picketing, but only unlawful strikes. Thus, even though the picketing of the London plant does not constitute a strike for the purposes of the Labour Relations Act, 1995, the conduct of the picketing is still regulated by section 102 of the Courts of Justice Act.
As the Board put it in Canteen of Canada, the focus of the Labour Relations Act, 1995 is on unlawful strikes. Thus, while the Act does not prohibit the picket line activity at the London plant itself, section 83(2) does not sanction the unlawful work stoppage by employees at the London plant. As the Board said in Canteen of Canada:
In Nelson Crushed Stone, supra, the Board made it clear that refusals to cross a picket line would be treated by the Board in the same manner as any other form of work stoppage – the critical question being whether the refusals had assumed a concerted character. It is clear, therefore, that the Board has the remedial authority to deal with unlawful strikes resulting from picketing, even where the picketing itself may be in support of a lawful strike.
In view of this Board’s wide authority to restrain untimely work stoppages, the need for a wide power to restrain picketing is less apparent. Where the harmful consequences flowing from such picketing can be themselves restrained, it would appear less necessary to restrain the picketing as well. This point assumes even greater significance given the difficulties associated with determining the legitimate scope of picketing in support of a lawful strike.
In Ontario the legislative emphasis has been in a different direction, focusing upon the lawfulness of strike activity, rather than upon picketing. A concerted refusal to work is considered to be a strike regardless of whether it is in response to the presence of a picket line. Moreover, picketing not in connection with a lawful strike that causes other employees to strike, is considered to fall within the prohibitions set out in section [81] and [83]. Falling outside of these provisions, however, is picketing done in connection with a lawful strike. If such picketing causes other employees to engage in an illegal strike, then that illegal strike, but not the picketing that causes it, can be the subject of a Board direction. This conclusion does not necessarily mean that such picketing is permitted by the general civil and criminal law. Rather, it simply means that picketing done in connection with a lawful strike is not touched directly by the Board’s remedial authority as set out in the Labour Relations Act. Accordingly, if persons wish to restrain such picketing, they must seek their remedy in the Courts.
- This case was followed in George Wimpey (Canada) Limited, [1978] OLRB Rep. Dec. 1096 and confirmed in Progistix-Solutions Inc., supra. (Despite comments to the contrary in the June 23 decision in this matter, nothing in the Consolidated Bathurst Packaging Limited case contradicts this reasoning.) The Act has not been changed since 1978 and the Board concludes that Canteen of Canada Inc. is a correct statement of the application of the Act to these facts.
Orders and Declarations
- The Board assumes that Teamsters Local 141 provided a copy of the June 23 decision to each member of the London-St. Thomas bargaining unit. For greater clarity, the declarations made by the Board in the June 23 decision, as amended by this decision, are as follows:
(1) the Board declares that Teamsters Local Union 141 has called or authorized an unlawful strike among the employees of Lafarge Canada Inc. employed at the London and St. Thomas plants;
(2) the Board declares that Douglas Pilkey has counseled or procured or supported or encouraged an unlawful strike and threatened an unlawful strike among the employees of Lafarge Canada Inc. employed at the London and St. Thomas plants;
(3) the Board declares that the employees of the applicant employed by Lafarge Canada Inc. at the London and St. Thomas plants, or some of them, have engaged in an unlawful strike by refusing to cross picket lines erected by Teamsters Local Union Local 141 at the plant or at customers’ jobsites;
(4) the Board directs Teamsters Local Union 141, its officers, servants, agents, and representatives, and any person acting on its behalf, to cease and desist from calling or authorizing this unlawful strike;
(5) The Board directs that Douglas Pilkey cease and desist from counseling, procuring, supporting, or encouraging an unlawful strike, and to cease and desist from calling, authorizing, or threatening to call or authorize this unlawful strike;
(6) The Board directs Mark Livingston and any other employee of Lafarge employed in the London and St. Thomas plants who has notice of this decision to refrain from engaging in an unlawful strike;
(7) The Board directs Teamsters Local Union 141 and its officers, agents and representatives forthwith to advise members of the Union employed in the London-St. Thomas bargaining unit that Article 8.03 of the collective agreement binding on them does not permit them to contravene the Labour Relations Act, 1995 or to engage in strike activity, and that they may not refuse to cross a picket line erected by Teamsters Local 141 or employees from the Tillsonburg unit.
“David A. McKee”
for the Board