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Could CUPE 416 Members Refuse to Cross CUPE 79 Picket Line?

This morning it was announced that CUPE 416 (the ‘outside workers’ ) and the City of Toronto had reached a tentative collective agreement.  That means that CUPE 416 members will have a chance to vote on the proposed deal in the coming days.  A  ratification vote is required by Ontario law as a condition of a collective agreement having legal effect.  The proposed deal could still be voted down by members.  The City and CUPE 416 were in a legal strike/lockout position as of today.

Sympathy Strike in Toronto Bargaining? (Photo: Toronto Sun)

Sympathy Strike in Toronto Bargaining?
(Photo: Toronto Sun)

Meanwhile, CUPE 79 (representing ‘inside workers’) continues to bargain with the City.  Their legal strike/lockout date is tonight at midnight.  Those two parties may also reach a deal, although Mayor John Tory has expressed more concern about the progress of bargaining with CUPE 79.

The scenario just described creates an interesting legal scenario worthy of classroom discussion in a labour law or industrial relations course.

Consider this.  What if bargaining between CUPE 79 and the City breaks down and either a strike or lockout begins tomorrow.  CUPE 79 members set up picket lines.  CUPE 416 members  show up for work, since they are awaiting the ratification vote, but then decide not to cross the picket line.

Or, let’s say that CUPE 79 workers are not locked out and do not strike, but that bargaining just continues slowly and the union wants to apply some pressure on the City.  Or the City elects to engage that other scenario we’ve discussed on this blog and it imposes a collective agreement on CUPE 79 members.  In any of these scenarios, could CUPE 416 members decide to strike in solidarity with CUPE 79 workers, to put pressure on the City to give CUPE 79 members a better deal?

Can CUPE 416 members be disciplined for refusing to report to work?

What do you think?

Well, remember that  CUPE 416 members are still in a legal strike position and would continue to be so until a new collective agreement is ratified by a majority.  Workers in a legal strike position cannot be disciplined for engaging in a strike.  The old CUPE 416 collective agreement is expired, and the new collective agreement is just a proposed collective agreement until it is ratified.  So the statutory ban on strikes during a collective agreement doesn’t apply.

Can you think of any thing else that would legally prevent CUPE 416 workers from engaging in a ‘sympathy strike’ in support of CUPE 79 in the scenario in which we presently find ourselves?

Is there (or should there be) a legal ban on the right to strike during the period between the date a proposed collective agreement is reached and the date the ratification vote is conducted?

If CUPE 416 and the City considered this possibility and agreed to a protocol that prevented CUPE 416 members from striking before the ratification vote is held, would that protocol be legally enforceable?  How so?

Even though CUPE 416 reached a tentative deal with the City, perhaps the story is not over just yet.  CUPE 416 members may still have something  to say about how their coworkers in CUPE 79 are being treated in bargaining.  Let’s watch.



3 Responses to Could CUPE 416 Members Refuse to Cross CUPE 79 Picket Line?

  1. Brian Connoly Reply

    February 19, 2016 at 10:26 pm

    No discipline can legally be handed out because the tentative agreement can be rejected by the membership just as was done last year with York University professors. The membership is in a legal strike position and can show their dismay of their employers treatment of other union members by refusing to cross the picket line , hence a legal strike in solidarity of fair treatment of fellow union members.

    I believe the strategy is fair considering the employer has the legal right to impose a collective agreement on CUPE 79. This could deter the employer from doing that and continue to bargain fairly until an agreement is reached. This can/should level the playing field.

  2. Robert Fajber Reply

    February 21, 2016 at 6:32 pm

    I am curious about the ‘sympathy’ aspect of this – certainly the 416 workers are in a legal strike position for themselves, they could refuse to go to work at any point between now and their contract ratification and be completely within their legal rights, but only if they do so for themselves (because they thought there was something wrong with the agreement, etc.). Can their stated reason be that 79 does not have a TA? I was under the impression that sympathy strikes were illegal, regardless of the position of the union. Is this correct? In this case it would seem pretty easy for the city to seek an injunction against 416.

    In any case, it seems like the thing to have done in this case would have been to coordinate across the bargaining teams of the two locals, and make one requirement of a TA with either local an acceptable TA for the other local. This would leave either able to strike. I think that this is probably an advisable tactic for any locals engaging in bargaining with an employer that has multiple locals, but it seems to work less often than it should.

    • Doorey Reply

      February 23, 2016 at 1:13 pm

      Hi Robert. A sympathy strike is a strike under our law, and as long as the workers engaging in it are in a legal strike position then it is legal. A strike is any concerted refusal to work, for any reason.

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