Can following the instructions of an employer result in an unlawful strike?
OLRB: Employees don’t commit an unlawful strike when they comply with their employer’s schedule or directions
In two recent decisions, the Ontario Labour Relations Board has shed light on what does – and doesn’t – constitute an unlawful strike within the meaning of the Labour Relations Act, 1995. The Board held that an employer’s business decisions regarding the scheduling and performance of its work cannot be relied on to find that its employees are on strike, and that there can be no strike where the employer directs or permits the employees to stop working.
The Baycliffe Homes decision
In Baycliffe Homes v Labourers’ International Union of North America, a residential builder, Baycliffe Homes, brought an unlawful strike application against Local 183 and its Bricklaying Sector Coordinator, Cesar Rodrigues.
Baycliffe was not complaining about its own employees. Rather, it brought the application against Local 183 and Rodrigues after Baycliffe’s masonry subcontractor, CJM Masonry, decided to not commence work at a Baycliffe project in Ajax, Ontario. That decision was made following discussions between CJM’s owner, Rodrigues, and another representative of Local 183 regarding compliance with a letter of understanding in the collective agreement between the Masonry Contractors’ Association of Toronto and the Masonry Council of Unions Toronto and Vicinity (the “MCAT collective agreement”). The MCAT collective agreement is binding on masonry subcontractors and Local 183 was seeking to ensure that the letter of understanding was followed. CJM’s owner also consulted with his lawyer.
The Board dismissed the application, holding that the unlawful strike provisions of the Act were directed at actions of employees, and not the actions of employers. The statutory definition of “strike” in the Act refers to the “cessation of work, a refusal to work or to continue to work by employees” or a “slow-down or other concerted activity on the part of employees”. In this case, none of CJM’s employees had taken any action, nor had Rodrigues or anyone else at Local 183 communicated with any of CJM’s employees. Indeed, CJM had not even started any masonry work at the Ajax project prior to the date that Baycliffe alleged the unlawful strike had commenced. Rather, CJM decided not to schedule any work, in light of the discussions between its owner and Local 183 and his discussions with his lawyer.
The Board concluded that, in these circumstances, there could be no strike, absent a strained argument that CJM’s owner was somehow an agent of Local 183, which the Board rejected. CJM simply made a business decision. It was not the Board’s place to second guess that decision or to speculate about the potential application of the letter of understanding in the MCAT collective agreement.
The Ras-Con decision
In Ras-Con Group Inc. v. Labourer’s International Union of North America, the Toronto Residential Construction Labour Bureau filed an unlawful strike application against Local 183, Rodrigues, and the Masonry Contractors’ Association of Toronto. In addition, the Ras-Con Group Inc. filed an unfair labour practice application against a number of respondents, including Local 183, the Masonry Contractors’ Association of Toronto, and the Masonry Council of Unions Toronto and Vicinity. Since the two applications involved overlapping allegations and sought similar relief, they were heard together.
The applications were filed after various masonry contractors stopped sending their employees to job sites where builders had subcontracted stucco/EIFS work to non-union contractors. The masonry contractors did not stop working altogether; they simply assigned their crews to work elsewhere. They took this action after the union advised them that attending a job site where a non-union stucco contractor was working violated the letter of understanding in the MCAT collective agreement and could lead to grievances. As a result, some builders then stopped stucco work or terminated their contracts with non-union stucco contractors, such as Ras-Con.
Neither the unlawful strike application nor the unfair labour practice application concerned employees of the builders represented by the Bureau or employees of Ras-Con. The Bureau is an accredited employer bargaining agency that bargains on behalf of residential builders bound to Local 183 in Board Area 8. These builders subcontract masonry and stucco/EIFS work to various subcontractors and did not directly employ the bricklayers. Similarly, Ras-Con is a stucco/EIFS contractor and did not directly employ any of the bricklayers that allegedly stopped attending the various sites identified.
Nevertheless, both applications alleged an illegal strike had occurred or was threatened. In the unlawful strike application, the Bureau alleged, among other things, that the union improperly engaged in recognition strikes to improperly pressure the builders to recognize the union for stucco work or to pressure the non-union stucco contractors to recognize the union’s bargaining rights.
In the unfair labour practice application, Ras-Con alleged, among other things, that the union had engaged in activities that amounted to a recognition strike, threatened an unlawful strike, and sought by intimidation and coercion to compel Ras-Con and its owner to recognize and accept the union’s bargaining rights, which it alleged were obtained unlawfully. Both the Bureau and Ras-Con also urged the Board to find that the letter of understanding in the MCAT collective agreement was inapplicable in these circumstances and, in any event, was unlawful and contrary to public policy. In addition, the Bureau asked the Board to compel the masonry subcontractors (who were not parties to the applications) to return to work on various projects “immediately”. Ras-Con sought special and general damages as well as an interim order pursuant to section 98 of the Act.
The Board dismissed both applications. It held that there had been no strike within the meaning of the Act, even though “bricklayers stopped performing bricklaying work at a number of sites of a number of builders”. The Board affirmed its findings in Baycliffe Homes that the definition of strike in the Act “pertains to the actions of employees, not the action of an employer” and “there can be no strike where the relevant employer directs or permits the employees to stop performing work”.
The Board acknowledged that the facts in Baycliffe Homes differed from those in these applications. In Baycliffe Homes, the job had not yet started and the contractor had not assigned its employees to commence the work at the project. However, these differences were not determinative. Rather, the Board emphasized that the masonry contractors were independent contractors who were “free to assign and determine the composition and locations (where and when) of their bricklaying crews”, and that the bricklaying crews were not scheduled to be at particular sites on particular days. The Board found that the relevant bricklayers “cannot obviously be engaged in refusing to work or continue to work in combination or concert to reduce output” since the Bureau and Ras-Con cannot establish that they were “actually assigned, scheduled or required by their employer to be at work at the builders’ sites on the relevant dates”. Accordingly, the Board concluded that there was no strike.
The Board did find that certain statements by union representatives amounted to threats of an unlawful strike and seeking to impose a penalty on one builder for participating in a proceeding. The Board therefore granted remedies based on narrow findings of fact relating to only one of the eight builders mentioned by the Bureau in the unlawful strike application.
However, the Board made it clear that nothing prevented the union from filing or indicating that it would file a grievance under the MCAT collective agreement, and emphasized that it is not a violation of the Act to file or threaten to file a grievance regardless of the merits.
Finally, in dismissing the unfair labour practice application, the Board noted that “[i]ntimidation and coercion are prohibited by section 76 if they are for a purpose specified in section 76.” However, “Ras-Con has simply not demonstrated any such right or obligation under the Act.” Harm to commercial interests is not enough. The Board emphasized that “the fact that Ras-Con may suffer commercial damage or loss of business as a result of arrangements made by other parties does not in and of itself establish a violation of the Act”. That is simply a “construction industry business reality”. This is not materially different from the enforcement of subcontracting clauses, which does not violate the Act or amount to intimidation or coercion prohibited by section 76 even if it causes Ras-Con to lose business or contracts.