Background

In 2002 the Supreme Court of Canada changed the law on secondary picketing in Canada. In RWDSU Local 558 v Pepsi-Cola Canada Beverages (West) Ltd (2002 SCC 8) the court ruled that secondary picketing was generally lawful unless accompanied by wrongful conduct such as violence or blockading. As such, union members and striking employees could picket businesses that were not part of a labour dispute in an effort to put pressure on the struck employer.

The Pepsi-Cola decision left it open for governments to enact laws that restrict the ability to picket places other than the struck location. These laws vary across Canada. The British Columbia Labour Relations Code is an example of a law that prohibits secondary picketing.

In British Columbia secondary picketing is unlawful unless the striking union can obtain a declaration that the secondary business or location has allied itself with, and is rendering undue assistance to, the struck employer. Suppliers and other affected businesses can arrange their affairs to work around strikes and lockouts without being declared an ally – so-called 'self-help' is permitted by such third parties.

Facts

A decision of the British Columbia Labour Relations Board has analysed self-help in a new way, making it more difficult to avoid secondary pickets. In Canada Bread Company Limited and Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local Union 468 (BCLRB B101/2017) the board discussed the requirements for declaring an entity an ally of the struck employer.

The union went on strike after Canada Bread locked out its employees at its Langley bakery – a large institutional bakery that services much of the grocery industry in western Canada.

The union applied under Section 65 of the British Columbia Labour Relations Code to have Canada Bread's distribution centre declared an ally of the bakery so that union members could picket there. The company opposed the application, arguing that the distribution centre had neither changed its relationship with the bakery, nor been performing work for the benefit of the bakery.

The bakery and the distribution centre are separate operations with separate management and unions. In normal circumstances, the distribution centre receives more than 50% of its volume from the bakery. However, to offset the shortage in volume from the bakery during the strike, Canada Bread developed a robust contingency supply plan, increasing the volume of products received from other bakeries. Because of this, the union argued that the company was using the distribution centre to avoid the economic consequences of the strike.

Canada Bread argued that in order to be considered an ally under the British Columbia Labour Relations Code, the distribution centre must be acting for the benefit of the bakery specifically, not the company in general. It relied on the fact that the distribution centre continued to accept the products that the bakery sent. The distribution centre had not changed its role with respect to the bakery and had no specific intent to assist the bakery in resisting the strike.

Decision

The board disagreed. Although it found that the bakery and the distribution centre are separate and distinct operations, and thus separate employers for the purposes of the British Columbia Labour Relations Code, the distribution centre was nonetheless found to be an ally of the bakery. It is not necessary that the allied party intend to assist the struck employer in resisting the strike. Nor is it material whether the assistance being given is struck work.

In this case, the distribution centre had been receiving an increased volume of products from Edmonton, Calgary and Winnipeg to offset the shortage from the struck bakery. The board found that the distribution centre's actions were aimed at fulfilling orders and supplying customers for the bakery, not preserving its own interests.

These actions insulated the bakery from economic pressure and allowed it to resist the strike. Using this logic, the board found that the distribution centre had altered its relationship with the bakery and was thereby an ally of the bakery under Section 65 of the British Columbia Labour Relations Code. Picketing at the distribution centre was therefore permitted.

Comment

The decision highlights the complexities in contingency planning for businesses facing potential labour disruption. Regardless of the jurisdiction in which they operate, managers should carefully plan supply sourcing and business continuity to facilitate a positive outcome in the event of a labour dispute.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact David T McDonald at Fasken Martineau DuMoulin LLP by telephone (+1 604 631 3131) or email (dmcdonald@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.