0972-00-U Occupational Health Clinics for Ontario Workers Inc., Applicant v. United Steelworkers of America, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; June 27, 2000
This is an application under section 100 of the Labour Relations Act, 1995 (the “Act”).
The applicant employer asserts that the responding union has threatened an unlawful strike.
Briefly put the employer says that, following the issue by the Minister of Labour of a “no board” report on June 12, 2000, the union took the position that there were four or more bargaining units under the collective agreement (presumably the previous expired collective agreement) between the parties. The union is alleged to have informed the employer that separate strike votes had taken place within the alleged bargaining units, and that several had voted to strike, while another had opted to ratify the new collective agreement. The employer claims the union threatened to commence a strike on June 29, 2000.
The employer alleges that there is only one bargaining unit, and that all the members of the single bargaining unit should have voted as one unit in any strike vote, pursuant to the Act. If the majority of employees in the single bargaining unit did not vote to strike, the employer states that any ensuing strike would be unlawful, and seeks a declaration to that effect.
The employer seeks a declaration that any strike by members of the union would be illegal and contrary to the Act.
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, if there is a single bargaining unit under the previous collective agreement, and fifty percent or fewer of the employees in that bargaining unit who voted, voted not to strike, (as the employer suggests), the scheme of the Act certainly suggests that any threatened strike by those employees 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.
[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.
(3) If a collective agreement is or has been in operation, no employee shall strike unless a strike vote is taken 30 days or less before the collective agreement expires or at any time after the agreement expires and more than 50 per cent of those voting vote in favour of a strike.
(7) A strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.
(8) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement.
(9) Any vote mentioned in subsection (7) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots. If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.
[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 where there is no collective agreement in force, the majority of voting employees in a strike vote have voted to strike, 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. 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.]
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 cases of this kind expedition is important ‑ particularly where it is said that strike activity is 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 will meet with the parties to see whether they can resolve their differences, without formal litigation.
“Patrick Kelly”
for the Board