2092-00-U Nestlé Canada Inc., Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 252 and Barry Lines, McColley Jerome, Lenford Bailey, and Peter (Narinedatt) Budhai, Responding Parties.
BEFORE: Bram Herlich, Vice-Chair.
DECISION OF THE BOARD; October 18, 2000
This is an application under section 100 of the Labour Relations Act, 1995 (the “Act”) that was filed with the Board at 4:57 p.m. on October 17, 2000. The application appears to have been properly served on the responding party trade union; it is not entirely clear from the Certificate of Delivery filed with the Board whether that is the case in relation to the individual responding parties.
The applicant employer asserts:
that a number of "employees" are engaging in an unlawful strike;
that the responding union and its officials have taken steps to counsel, procure, support or encourage that unlawful strike; and finally
that various "persons" are doing acts which they know or ought to know will induce employees to engage in an unlawful strike.
The employer’s allegation can be simply summarized the employer says that a number of employees are conducting an overtime boycott, as part of a protest in relation to labour relations conditions in the plant. The employer asserts that this concerted activity is untimely (a collective agreement is in place) and disruptive. The employer asserts that this behaviour constitutes a “strike within the meaning of the Labour Relations Act, and seeks a declaration that this strike activity is unlawful, as well as a direction prohibiting that 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 should flow if they are proven to be true. On the other hand, if there is a collective agreement in place that applies to the workers in question (as the employer says there is), the scheme of the Labour Relations Act certainly suggests that any strike or threatened 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.
[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.
[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. “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. And in cases such as B.C.L. Canada Inc., [1981] OLRB Rep. July 836, the Board has held that an “overtime boycott” to put pressure on an employer to make concessions may well be a “strike” within the meaning of the Act. The Board cited with approval the following passage from Weyerhaeuser Canada, [1976[ 2 CanLRBR 41:
How does an overtime ban by a union appear within that analysis? This Union contended that the provisions of the collective agreement quoted earlier make overtime voluntary in certain situations (albeit compulsory in others). An employee is entitled to refuse an overtime assignment if he so chooses. If the employees collectively choose to exercise that contractual right, they cannot be said to be on strike in violation of the Labour Code. In the words of the statute, they are not refusing “work”, because this kind of overtime is not the kind of work which as employees they are contractually bound to perform.
That analysis does fall prey to the fallacy we mentioned earlier of singling out one element of the statutory definition and considering it in isolation from the rest. When an employer agrees that overtime will be voluntary, it gives the individual employee the choice about whether to accept a particular overtime assignment. The assumption is that some of the employees will want to work a lot of overtime, others very little some employees will be interested in overtime at some times, others at different times. But the employer experience is that the availability of premium pay for overtime work will attract sufficient volunteers from the total work force that necessary overtime is performed without undue problem. (Indeed, most collective agreements have a provisions requiring an equitable sharing of overtime among employees who may want more than is available.) That situation is qualitatively changed when an overtime ban is instituted by the union. Now all employees refuse all overtime work, out of conviction or by reason of union discipline. The employer, which previously had no problem in securing volunteers for needed overtime work as it occurred, now faces what is, in effect, a partial withdrawal of labour. Irregardless of the fact that the employer previously had no contractual right to order an individual employee to work overtime, the new collective situation places a significant economic pressure on the employer, especially after a period of time. If the union has organized the overtime ban to win certain employment concessions from the employer, this step will likely make the employer somewhat more malleable. But that action by the union amounts to a “strike” and is legality will turn on the application of ss. 79 and 80 of the Code [which, like the Ontario Act, prohibited work stoppages during the term of a collective agreement].
See also: Watts and Henderson, [1988] OLRB Rep. July 721 and Corporation of the City of Cambridge, [1989] OLRB Rep. Nov. 1095, where the Board said this:
Job action designed to pressure an employer with respect to a grievance or bargaining objective is not permitted while a collective agreement is in effect or during the conciliation process. Some employees seem to think that if their collective agreement specifies that overtime is “voluntary” in that it permits them to refuse to work overtime on an individual basis, they may also do so, whether expressly or tacitly, in combination or in concert in order to put pressure on their employer either in support of some bargaining objective or otherwise. That is not so. Such a concerted refusal to work overtime constitutes an unlawful strike…
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.] The intention is to catch work stoppages of all kinds – but particularly those that occur when a collective agreement is in effect.
In summary then, the statute 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. If there is a dispute in the workplace during the currency of a collective agreement, aggrieved employees are obliged to use the grievance/arbitration procedure (or other mechanisms prescribed by law, if some statutory right is allegedly infringed). They are not permitted to engage in strike action.
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 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 an unlawful strike. Those remedies need not be elaborated here.
In unlawful strike situations (or threats) 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 Friday, October 20, 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 responding parties will have until 9:00 a.m. on Friday, October 20, 2000, to file their replies.
The applicant and the responding parties 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.
“Bram Herlich”
for the Board