Lafarge Canada Inc. v. Teamsters Local Union Local 141, 2001 CanLII 4477

Lafarge Canada Inc. v. Teamsters Local Union Local 141

File No.: 0885-01-U Date: June 23, 2001

Applicant: Lafarge Canada Inc. Responding Parties: 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

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

1. This is an application under section 100 of the Labour Relations Act, 1995, S. O. 1995 ch. 1 (the "Act"). The applicant ("Lafarge") operates a number of Ready-Mix concrete plants in the geographic jurisdiction of Local 141. The relevant ones for the purposes of this decision are at London, St. Thomas, Tillsonburg, Strathroy and Brampton. Local 141 is party to separate collective agreements covering bargaining units of employees including truck drivers, employed at Tillsonburg, at Strathroy, and at a combined unit at London and St. Thomas. There is no bargaining agent at Brampton.

2. The employees at Tillsonburg are engaged in a lawful strike. They have picketed the plant at Tillsonburg. There is no complaint about that picketing. The employees and Local 141 have also picketed the London plant, the St. Thomas plant (briefly) and the job sites of certain customers of Lafarge engaged in construction projects. Lafarge takes the position that Local 141 is entitled to picket at the Tillsonburg site, any job site of a customer who would otherwise be supplied by the Tillsonburg plant, and any plant where concrete is mixed and shipped to a customer who would ordinarily be supplied by the Tillsonburg plant (to date only St. Thomas). Lafarge does, however, allege that

(a) the picketing at London plant or other plants which do not supply customers normally supplied by the Tillsonburg plant, is unlawful and should be enjoined;

(b) that the employees who are in the London-St. Thomas bargaining unit are engaged in an unlawful strike and should be enjoined from doing so;

(c) that Local 141 has called or authorized an unlawful strike of the London-St. Thomas bargaining unit, and that the other responding parties have counseled procured, supported or encouraged this unlawful strike and should be enjoined form doing so.

3. This matter came on for hearing on short notice and was heard on June 22 and 23, 2001. This decision supplies the "bottom line" of the Board's decision. The reasons for this decision, and a final decision with respect to one issue will follow in due course.

4. With respect to the first issue raised by Lafarge, the Board will reserve its final decision. Counsel for the responding parties asserted that Local 141 and the Tillsonburg employees were entitled to picket any location operated by Lafarge anywhere it was located in furtherance of its lawful strike. The applicant asserted that picketing must be confined to locations where the "work which would normally be performed by persons in the Tillsonburg bargaining unit" was being carried on. Neither counsel was able to supply any authority for their assertion. Whatever the state of "the law" on this issue it is not apparent that the Board has the authority to regulate picketing in connection with a lawful strike. While at least one decision of this Board seems to favour the applicant's view (Consolidated-Bathurst Packaging Limited [1982] OLRB Rep. Sept. 1274 at paragraph 25), the Board has twice stated that it does not have the jurisdiction to deal with picketing in connection with a lawful strike. The Act focuses on unlawful strike activity, not the conduct of a lawful strike: Canteen of Canada Ltd. [1978] OLRB Rep. Mar. 207 and George Wimpey (Canada) Limited [1978] OLRB Rep. Dec. 1096.

5. With respect to the remaining issues, the applicant succeeds. For reasons which will be set out in greater detail later, the activity of the employees from the London-St. Thomas, bargaining unit who refused, albeit often only temporarily, to cross the picket lines erected at the London plant and at the job sites of Lafarge's customers constitutes an unlawful strike. These employees included Mark Livingston, an employee of Lafarge and assistant steward for Teamsters Local Union 141. I find that this unlawful strike was called or authorized by Local 141. I further find that Douglas Pilkey has counseled, procured, supported and encouraged this unlawful strike activity and has threatened further similar activity.

6. The fact that, on one job site, only one employee refused to cross the picket line is immaterial. On the facts of this case, the decision not to cross the line was made in concert with Douglas Pilkey. Further, it is not necessary that more than one employee be engaged in activity which constitutes a strike so long as there is a common purpose: Acme Building and Construction Limited [1975] OLRB Rep. Nov. 810 at paragraph13.

7. The responding parties submit that, in the event that I find (as I have done) that Local 141 and Mr. Pilkey have engaged in activity which in other circumstances would be unlawful strike activity, the Board should nonetheless not grant relief. The responding parties assert that the other Lafarge plants, particularly because they are owned by the same corporate entity, fall within the "ally" doctrine and thus the activity is protected by section 83(2) or at the least, the Board in its discretion ought not to grant the relief sought. For reasons to be discussed at greater length later, I am not persuaded by either argument.

8. The responding parties relied almost exclusively on the comments of the Board in Consolidated-Bathurst Packaging Limited, supra, at paragraphs 22-32. In that case the Board analyzed the development of the "ally" doctrine, primarily in American law, but did not apply it in that case because the factual foundation for the argument was lacking. I do not, however, read the Board's decision as affirmatively stating that it accepted such a doctrine. Rather the statement at the end of paragraph 32 that:

Abstract pronouncements are not appropriate and the Board should be reluctant to develop per se rules in this area. Each case must be analyzed in light of the established facts, the industrial relations realities, and competing policy considerations.

suggests exactly the opposite. At this point it is sufficient to note two primary difficulties in applying the doctrine as set out in the American case law. First, it is a doctrine that arose from the policy considerations generated by American statutes which, at the time the decisions were rendered, did not have (a) a prohibition against strikes during the term of a collective agreement and (b) anything resembling sections 1(4) and 69 of the Act. Picketing and strike activity became lawfully sanctioned methods of preserving bargaining rights under the National Labour Relations Act. Second, the cases referred to in Consolidated-Bathurst Packaging Ltd., supra, deal with the right of the union which represented employees of the struck employer to picket the operations of the alleged ally. They do not deal with the right of the employees of the alleged ally to engage in strike activity in support of the striking union. In this case, the "competing policy considerations" referred to by the Board do not lead to the result sought by the responding parties.

9. Accordingly, the Board makes the following declarations and directions:

(1) the Board declares that Teamsters Local Union 141 has called or authorized an unlawful strike;

(2) the Board declares that Douglas Pilkey has counseled or procured or supported or encouraged an unlawful strike and threatened an unlawful strike;

(3) the Board declares that the employees of the applicant employed in the London-St. Thomas bargaining unit, or some of them, have engaged in an unlawful strike by refusing to cross picket lines erected by Teamsters Local Union Local 141;

(4) the Board directs Teamsters Local Union Local 141, its officers, servants, agents, and representatives, and any person acting on its behalf, to cease and desist from calling authorizing an 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 an unlawful strike;

(6) The Board directs Mark Livingston and any other employee of Lafarge employed in the London-St. Thomas bargaining unit 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.

(8) The Board directs that Teamsters Local 141 provide a copy of this decision to each member of the London-St. Thomas bargaining unit on or before June 27, 2001.

“David A. McKee”

for the Board