Budd Canada Inc v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2000 CanLII 8789

Budd Canada Inc v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)

2616-00-U Budd Canada Inc, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local Union 1451, Wayne McKay, Roger Lee, Mike King, Ralph MacKenzie, Hemi Mitic, John Vanderpool, Jack McGoey and James Fury, Responding Parties.

BEFORE: R. O. MacDowell, Chair.

DECISION OF THE BOARD; December 1, 2000

1This is an application under section 100 of the Labour Relations Act, 1995 (the “Act”) that was filed with the Board on December 1, 2000.

2The applicant employer asserts:

• that a number of "employees" are engaging in an unlawful strike;
• that the responding union and its officials have failed to bring an end to that unlawful strike; and
• that various "persons" are doing acts which they know or ought to know will induce employees to engage in an unlawful strike.

3The employer says that employees have organized a work stoppage, and have engaged in picketing designed to encourage other employees to participate in that work stoppage. In the employer’s submission this behaviour amounts to an “unlawful strike” – contrary to both the existing collective agreement and the Ontario Labour Relations Act. The employer says that, as a result of the work stoppage, there is a significant interruption of production, which results in substantial financial losses. As many as 1700 employees are affected.

4The employer seeks a declaration that this strike activity is unlawful, as well as a direction prohibiting that unlawful conduct.

5At 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. Nor has the Board received the union’s reply –confirming, denying or explaining the situation which the employer complains about.

6On 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. (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]

46. 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]

48. (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]

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) 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]

81. 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 for refusing to engage in an unlawful strike]

85. 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]

100. 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]

7As 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”.

8In 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.

9Obviously strikes do not occur in a vacuum. Employees seldom engage in collective action without having some “reason”. And, normally, the “reason” is some unresolved problem in the workplace. But the point is: the solution to that problem must be sought under the grievance/arbitration provisions of the collective agreement. That is what the grievance procedure is for.

10If 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]. In the case of a continuous production operation, those damages can be substantial.

(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.

11In 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 Monday, December 4, 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.

12The responding parties will have until 9:00 a.m. on December 4, 2000 to file their replies.

13The 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.

14In particular: the applicant is directed to post the decision in the workplace, and distribute copies to persons potentially affected by the situation or the remedies requested.

15The responding union and its officials are also reminded of their obligations in such situation.

“R. O. MacDowell”

for the Board