Some Legal Thoughts on the Long, Cold Beer Can Strike

February 12, 2015

Earlier this week I was asked to join Matt Galloway on CBC’s Metro Morning to talk about a strike that has dragged on a beer can production factory in north Toronto called Crown Holdings,  and how the law deals with this sort of colossal industrial relations breakdown.  I couldn’t make the interview, but the request did prompt me to write this post.
The strike began on September 6, 2013, and it continues.  There are some 128 employees represented by

the Steelworkers, many of them with very long service. The union has commenced an extensive public campaign to build pressure on the company, including a boycott of beer cans.
First thing to note is that a year-and-a-half long strike is extremely rare.   About 96% of collective bargaining ends without either a strike or lockout, and when a work stoppage does occur, it usually ends quickly.  For example, in 2012, the average length of work stoppage in Canada was 23.9 days.   So we are dealing with a highly unusual situation here.   A lot of issues seem to be involved, but a few stand out to me just from reading the clippings: (1) the employer wants a huge wage cut and other concessions; (2) the employer wants a two-tier wage and benefit grid that would treat new (read young) workers as second class citizens at the factory; and (3) the employer is insisting on the right to decide which striking employees will be permanently replaced by newly hired, lower waged replacement workers, and which will not.
This strike has engaged the whole gambit of legal mechanisms in the Labour Relations Act.

Vote on Employer’s ‘Final Offer’:  The employer exercised its legal right to have the Minister of Labour conduct a vote of employees on its ‘final’ offer (Section 42).  The vote was held in March 2014, and was soundly rejected by the employees by a vote of 117-1.  The employer very obviously misread the mood of the union membership.

Picketing Protocol:  The union and employer bargained a picketing protocol that permits the picketers to stop cars entering the workplace for a short period of time.  In the long strike, there hasn’t been any injunction sought by the employer.

Replacement Workers:  The employer has exercised its legal right (in Ontario) to use replacement workers to keep production going, and it has paid those workers considerably less than what the unionized workers earned.  This has enabled the employer to withstand the strike pressure.

Back to Work Protocol:  The employer has refused to agree that it will take back the striking workers.  In other words, the employer’s position is that it will only take back those employees it wants, and the others will all lose their jobs to the replacement workers.  If you were one of those employees, would you vote for a deal that could see you lose your job to a replacement worker?

The question of whether an employer can replace a striking worker with a replacement worker is an interesting one, and something we cover in Labour Law class, although it doesn’t arise all that often.  It doesn’t arise often because the Ontario legislation guarantees striking workers a right of recall for the first 6 months of a strike (Section 80), and almost all strikes end within 6 months.  Since the strike has now lasted longer than 6 months, the statutory protection is over.

But that doesn’t mean it is open season on the strikers.  An employer still cannot refuse to take back strikers to punish them for exercising legal rights under the LRA.  Crown could not refuse to take back the leading union supporters, but take back everyone else, for example.  That would violate the unfair labour practice provisions that prohibit antiunion discrimination (Sections 70, 72, 76).  The workers have a legally protected right to strike, and can’t be punished for exercising it.  So it matters why Crown does not want some of the employees back.  The lead case on that point is Shaw-Almex Industries (1986), where the OLRB ruled that the employer’s decision to keep on replacement workers after a strike  lasting longer than 6 months, rather than recall workers who had been on strike, was motivated by antiunion animus, because the evidence didn’t disclose that replacement workers had any superior skills.  I don’t know what reason Crown is citing for refusing to take back many of the strikers.

The Union has filed an unfair labour practice against the employer alleging bad faith bargaining and antiunion discrimination.  That case remains outstanding.

Issues for Discussion
The Crown Holdings situation raises interesting policy questions for labour law students to ponder.
1.   For example, why does Ontario law protect strikers’ jobs for only 6 months?  That seems like an arbitrary number, and it creates a perverse incentive system as the strike nears the 6 month mark.  For the strikers, it creates a huge incentive to just settle on whatever terms are offered to ensure their jobs are still there.  For the employer who might want to weed out a bunch of workers, it creates an incentive to NOT reach a deal before the 6 month date.   Why is that good policy?  Do you think it is?
The 6 month arbitrary deadline doesn’t exist in the federal sector for example, where the Code says this:

87.6 At the end of a strike or lockout not prohibited by this Part, the employer must reinstate employees in the bargaining unit who were on strike or locked out, in preference to any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the unit on strike or locked out.

 2.   Should employers be permitted to use replacement workers at all?  This is one of the great debates in labour law.  Ontario prohibited replacement workers between 1992 and 1995, but then the Harris Conservative government reinstated the right, and the Liberals have left it.  But other jurisdictions prohibit replacement workers, including British Columbia.  Can you think of arguments for and against permitting replacement workers?  Do you think this strike at Crown would have been resolved quicker had the employer not been permitted to use replacement workers?
3.  Should the law provide a mechanism to end strikes or lockouts after a certain period of time, to prevent long disruptive strikes like this one?  Since the vast majority of work stoppages end quickly, in less than one month, what about a law that permitted either union or employer to refer the dispute to binding “final offer arbitration” after 2 or 3 months of a work stoppage?  Manitoba already has something like this, as I have explained before.  Can you think of any arguments why we would not want a law that permits a party to end an unusually long work stoppage by referring the matter to arbitration?   
4.  Here is a fun one:  Given the SCC’s recent decision that the Charter protects a right to strike, do you think Section 80 of the OLRA is Constitutionally suspect?  It draws an arbitrary distinction, protecting the job of a striker for 6 months, but then permits the employer to terminate the striker after 6 months.  The SCC has said before that labour rights are often meaningless without state protection.  Does a Charter right to strike require legislative protection against being permanently replaced not just for the first 6 months you exercise your right to strike, but thereafter as well?