February 26 2019
The Ontario Labour Relations Board issued a “bottom line” decision today ruling that Unifor and some of its officials acted unlawfully by engaging in an illegal strike and “procuring” an unlawful strike at GM in Oshawa and at two GM suppliers in Whitby, Inteva and Leer.
The Board’s decision comes as no surprise. In fact, Unifor basically conceded that there had been an unlawful strike, but argued that the Labour Board should exercise
its discretion and not issue any remedy because the strike was short and was over before the application was filed. The OLRB’s Chair, Bernie Fishbein, ruled that Unifor engaged in unlawful strikes at all three locations and that union officials, including Unifor President Gerry Dias, “authorized, encouraged, or counselled” the strikes. He issued a cease and desist order.
Unifor members walked off the job on November 26 and engaged in a “sit down” strike on January 8 after GM announced in November that it would not be assigning any more lines to Oshawa after December 2019, effectively causing the closure of the historical GM factory. Unifor has filed a grievance alleging a breach of a collective agreement term prohibiting GM from closing the factory before September 21 2020.
As I explained in this Toronto Star story, Ontario has a very narrow right to strike. The law restricts strikes in two ways. Firstly, it defines “strike” very broadly to include any refusal by two or more employees, in concert, to refuse to work or to work to rule:
“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;
This definition clearly captures GM workers who walked off the job with the encouragement of the union to protest GM’s closure announcement, as well as workers who engaged in a collective sit down at the factory.
Secondly, the law restricts strikes to very narrow time frame during the collective bargaining process. Strikes at any other time are unlawful. A strike is never lawful during a collective agreement. That rule is found in Section 79 of the Labour Relations Act, which reads:
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.
All of this is explained in depth in Chapter 42 of my Law of Work text.
Since the workers who participated in the work actions were covered by a collective agreement, they were not entitled to respond to GM’s devastating announcement by striking. The law requires the union to respond to any alleged breach of a collective agreement by filing a grievance, which Unifor has done in this case.
Therefore, there was little doubt that the Labour Board would issue an unlawful strike declaration in this case. If GM wants to pursue damages against Unifor for lost production, it must file a grievance under the collective agreement and ask an arbitrator to make that order. The Labour Board can only order damages for an unlawful strike if the strike occurs when no collective agreement is in force (see Section 101, 103).
The Board’s decision can be filed in the Superior Court of Justice (section 102 of the OLRA) and thereafter enforced as a court order. That means that future illegal job acton by Unifor members could result in a contempt of court order leading to fines and, possibly even imprisonment although that is uncommon these days.
It seems clear that Unifor has decided to pull out all the stops to pressure GM to revisit its decision to close the Oshawa factory, including boycotts and illegal job actions. Those of you who have studied labour history will be well aware that many of the biggest labour battles–and greatest victories–in Canada and abroad involved worker action that the law treated as unlawful. I suspect we may not have seen the last legal proceeding involving the campaign against General Motors in Canada.