3784-99-U Domtar Merchants, Buntin Reid, Applicant v. Communications, Energy and Paperworkers Union of Canada Local 1291, Bob Smart and Wes Laing, Responding Parties.
BEFORE: Timothy W Sargeant, Vice-Chair
DECISION OF THE BOARD; March 21, 2000
This is an application under section 100 of the Labour Relations Act, 1995 (the “Act”) that was filed with the Board on Friday, November 12, 1999.
The applicant employer asserts:
that a number of truck drivers employed at the Buntin Reid operation in Mississauga are engaged in a concerted refusal to work overtime
that such activity constitutes an unlawful strike
The employer seeks a declaration that the alleged strike activity is unlawful, a direction prohibiting that unlawful conduct, and certain ancillary relief that need not be set out here.
- At this stage the employer's application is a mere allegation. There has, as yet, been no hearing to establish the employer's assertions or to consider what remedy (if any) should flow if the assertions are proven to be true. On the other hand, if there is a collective agreement in place that applies to the workers in question, the scheme of the Labour Relations Act, 1995 (the “Act”) is clear: any strike would be unlawful at this time. The relevant provisions of the Act read as follows:
[Strike Definition]
- (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.
- 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.
[Employee Prohibition]
79.‑(1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.
(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,
a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties the report of a conciliation board or mediator; or
b) 4 days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.
(6) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock‑out of an employee.
[Trade Union/Union Official Prohibition]
- 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 lock‑out.
[No Reprisals]
- 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.
(emphasis added)
As will be seen, the statute contains a comprehensive code that prohibits unlawful strikes, threats of unlawful strikes and behaviour intended to encourage unlawful work stoppages. Strikes are permitted only where there is no collective agreement in force, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute. At any other time, strikes are absolutely prohibited. Likewise, it is unlawful for the union or its officials to counsel, procure, support or encourage an unlawful strike.
The statute involves a balance. On the one hand, it supports collective bargaining, recognizes a freedom to strike, and immunizes lawful strike activity from both common law disabilities and certain forms of employer reprisal. But, at the same time, the statute regulates the manner and time in which such economic pressure can be exerted.
In particular, the statute guarantees that once a collective agreement is signed, it becomes a "peace pact": there can be no strike or lock‑out during its term of operation; moreover, the term "strike" has been comprehensively defined (see above) to include any concerted work refusal that, as a consequence, interrupts production (see: Domglas Ltd., [1976] OLRB Rep. Oct. 569; aff'd by the Divisional Court (1978) 1978 CanLII 1625 (ON HCJ), 19 O.R. (2d) 353). Indeed, in a number of instances, labour relations boards have determined that a concerted refusal to work overtime constitutes a strike. (See: Mobil Paint Co., [1974] OLRB Rep. Oct. 650; Canada Packers Inc., [1983] OLRB Rep. Sept. 145; Domtar Packaging Ltd., [1974] OLRB Rep. Dec. 889; Cameron Packaging, [1979] OLRB Rep. June 489; C & C Yachts Manufacturing Ltd., [1977] OLRB Rep. July 433; and BCL Canada Inc., [1981] OLRB Rep. July 836.) Actions which are permitted for an individual can become unlawful when undertaken in concert.
If an unlawful strike does occur, an employer can seek a number of remedies. In Monarch Fine Foods Limited, [1986] OLRB Rep. May 661, the Board outlined the options:
(1) Under section 100 an employer can seek a cease‑and‑desist order from the Board, which is enforceable in the Ontario Court of Justice (General Division) as an Order of that Court. Disobedience can result in fine or imprisonment.
(2) An employer may seek damages at arbitration for any lost profits or economic losses [see section 103 of the Act]. The union can become liable for such damages if its officials instigated the strike or did not take affirmative steps to bring the strike to an end.
(3) An employer can discipline employees who engage in unlawful concerted activity because engaging in a strike is a breach of their employment obligations which warrants at least some discipline, depending on the circumstances. Likewise, an employer can discipline union officials who organize such unlawful activity. (See for example: Re Oshawa Group Ltd. and Teamsters Union Local 419 (1988), 1988 CanLII 9224 (ON LA), 33 L.A.C. (3d) 97 where the arbitrator upheld a 14‑day suspension with consequent loss of pay for an employee engaging in an illegal strike.)
(4) The employer may seek a consent to prosecute and subsequently prosecute employees or the trade union for their breach of the law. Labour Relations Act An unlawful strike is not just a private protest. It is contrary to the. A successful criminal prosecution may result in fines of up to $2,000 per day for employees and $20,000 per day for the Union.
It is open to an employer to seek any or all of these remedies.
This is not to say that the Board ignores the industrial relations realities of the situation. Obviously, unlawful strikes do not occur in a vacuum. Typically, there is an employee grievance which has not been resolved, so that the strike is either an expression of frustration, or an attempt to pressure the employer to respond to the issue in a particular way. In this sense, the unlawful strike is merely part of a broader labour relations problem which will continue to fester if not resolved.
But the point is: such difficulties or problems must be addressed between the parties or through the grievance‑arbitration mechanism. Strike activity is strictly prohibited.
In unlawful strike situations, expedition is important ‑ particularly where it is said that strike activity is ongoing. The Board's practice is to schedule such matters for hearing as soon as possible. Accordingly, this matter is hereby set down for hearing on an expedited basis.
The hearing will take place at 505 University Avenue 2nd floor, Toronto, Ontario, on Thursday, March 23, 2000.
A Board Officer is hereby appointed to confer with the parties forthwith to see whether this matter can be resolved without formal litigation.
“Timothy W. Sargeant”
for the Board