0974-00-U MacMillan Bathurst Pembroke Plant, Applicant v. IWA Canada., Local 1000 (Hourly), Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; June 28, 2000
This is an application under section 100 of the Labour Relations Act, 1995 (the “Act”).
The applicant employer asserts that the responding party union and a number of employees are engaging in an unlawful strike.
Briefly put the employer says that employees and the union have engaged and continue to engage in a refusal to work overtime before and after the issue of a “no board” report issued by the Minister of Labour on June 22, 2000. The expired collective agreement filed by the applicant contains language suggesting that overtime, while not compulsory, is to be shared equally among employees qualified to do the work. The employer claims that normally there is a high take-up of offered overtime, but that following the breakdown of collective agreement negotiations, there have been several incidents in which overtime has been refused by certain employees in substantial numbers.
Among other things, the employer seeks a declaration that the responding party and members of the bargaining unit, by allegedly engaging in the overtime bar, have engaged and continue to engage in an unlawful strike, contrary to the Act. It also seeks an order prohibiting any continuation of the alleged unlawful conduct.
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 might or should flow if the employer proves its case. On the other hand, the Board has in the past declared an unlawful strike where, before the exhaustion of the conciliation process (including the 14-day period following the day the Minister of Labour releases the “no board” report), employees refused voluntary, regular assignments of overtime in concert: see for example C & C Yachts Manufacturing Ltd., [1977] OLRB Rep. July 433. However, a concerted refusal by employees to work in excess of the hours of work set out in the Employment Standards Act, R.S.O. 1990, c.E-14, as amended, (“the ESA”) in the absence of a permit issued to the employer pursuant to the ESA has been held by the Board not to be a strike: see Cameron Packaging Inc., [1979] OLRB Rep. June 489. The point is, that, in certain circumstances, a concerted refusal to work overtime may constitute an unlawful strike. And, quite apart from a work stoppage itself, the Act does address persons and conduct that cause unlawful strikes. 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.
[All Collective Agreements must have a “no-strike” clause]
- 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.
[Employer-employee disputes must be arbitrated]
- (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
[Employees must not strike during a collective agreement]
- (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) 14 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 unions must not sponsor strike activity]
- 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]
- (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 for refusing to engage in an unlawful strike]
- 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.
[Declaration and direction by Board re unlawful strike]
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 Act contains a comprehensive code that prohibits unlawful strikes, threats of unlawful strikes and behaviour intended to encourage or cause unlawful work stoppages. Strikes are permitted only in the period where there is no collective agreement in force, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute. “Strikes” at any other time are unlawful; moreover, the definition of “strike” is quite elastic, and encompasses any work refusal by a group of employees “in concert, in combination, or in accordance with a common understanding”. Those words have been held to encompass a broad range of collective activity including: slowdowns, “hot cargo arrangements”, “sympathy strikes” and a concerted refusal to cross picket lines as an expression of solidarity with the actions of another trade union. (I have already referred very briefly above to the Board’s jurisprudence concerning concerted refusals to work overtime). The definition is intentionally cast in very broad terms, and has been so construed by both the Board and the Courts. [See, for example: Acme Building and Construction Ltd., [1984] OLRB Rep. Aug. 1037; Toronto Transit Commission, [1984] OLRB Rep. Dec. 1781, application for judicial review dismissed June 23, 1986 (Div. Ct.); Horton CBI Ltd., [1985] OLRB Rep. June 880; and the discussion in Nelson Quarry Co., [1995] OLRB Rep. June 825.]
As indicated, the employer’s assertions are, at this stage mere allegations. They have yet to be proved, and it has yet to be established whether the behaviour described fits within the legal framework regulating industrial conflict, and, if it does, what remedy (if any) the Board might/should give in the circumstances. The point is: the Act 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 Act regulates the manner and time in which such economic pressure can be exerted.
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 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].
(3) An employer can discipline employees who cause or 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. (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. An unlawful strike is not just a private protest. It is contrary to the Labour Relations Act. 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.
A variety of remedies may also be available to interested parties who are injured by an unlawful strike, or in respect of picketing in connection with a lawful or an unlawful strike. Those remedies need not be elaborated here.
In alleged unlawful strike situations expedition is important ‑ particularly where it is said that strike activity is ongoing or imminent. 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 the Boardroom, 2nd Floor, 505 University Avenue, Toronto, on Thursday, June 29, 2000 beginning at 9:30 a.m. If the case is not resolved on that date, it will continue on consecutive days, from day to day thereafter, until completed or the Board otherwise directs.
The purpose of the hearing is to receive the parties’ representations on the matters in dispute: whether the behaviour complained of is “unlawful” in whole or in part; and what remedy, if any, should flow if that proposition is established.
The responding party may file its reply, if any, prior to the commencement of the hearing. Such reply may be provided to the applicant and the Board by facsimile transmission.
The applicant and the responding party are both directed to take all reasonable steps to bring this decision to the attention of any employee or union official who may be affected by the situation under review, or the remedies which the applicant seeks.
In advance of the hearing, a Labour Relations Officer may contact the parties to see whether they can resolve their differences, without formal litigation. As noted, there are previous Board cases touching on the issues raised by the applicant, so the parties may well be able to resolve this dispute without the necessity of a formal or protracted hearing.
“Patrick Kelly”
for the Board