Toronto Work Stoppage Situation Becomes Clearer as Deadline Looms

See my ongoing diary of the City’s negotiations with CUPE 416 (outside workers) here.
February 3-  City Says it Will Unilaterally Alter Conditions of Employment Starting Monday Morning
Watching City of Toronto collective bargaining is like watching a train crash in slow motion.
The moment we knew was coming for 2 years looks to be upon us.  This afternoon, the City tabled what it called its “final offer”—employers almost always table something they call a “final offer”–and announced to the public its strategy.   Here is the City’s memorandum explaining the situation from the employer’s perspective.
There isn’t anything new in terms of proposals:  the Union offered to roll over the agreement with a 3 year wage freeze, and the City said it would rather give a pay raise to the employees who remain after they have turfed a whole bunch of workers.  So we have the odd situation of an employer offer pay raises, and the union saying it doesn’t want a raise.  The catch is the employer’s real goal is to terminate a bunch of the workers and obtain collective agreement language that will allow them to do that, and also to make other managerial changes without limitations imposed by the agreement.  There is mention in there about the employer proposing to no longer collect union dues for the union.  I don’t know what that is about.
The more interesting clarification in the Memo is the City’s plan to not lockout the workers, but to unilaterally change their conditions of work once the employer is in a legal lockout position (Sunday at 12:01 a.m.).  Here is what the memo says:

Given the lack of a settlement and the distance between the parties, I have concluded, in consultation with the City’s Executive Director of Human Resources, my Senior Management Team, the City Solicitor’s Office, and our external legal counsel, that it would be inappropriate to delay the necessary changes to the collective agreement if we are unable to negotiate a new agreement. To be clear, the Labour Relations Act, 1995 provides the City of Toronto with the ability to implement new terms of employment once the negotiations have broken down and after the 17- day No Board period has expired. Based on those consultations, I have decided, if we do not reach a new agreement by the deadline, that it would be appropriate and necessary to exercise this option.
The City, in tabling its proposals has told Local 416 that if the parties fail to reach a negotiated settlement by 12:01am Sunday, February 5, 2012, it will be implementing changes that include new or modified terms and conditions of employment for employees represented by Local 416 beginning February 5, 2012,

This is a strategy that is not often deployed by employers, but is a legal option available under our system of labour law. I’m not sure if a government employer in Canada has ever done this.  Anyone know?
Since there is no collective agreement in force, and the mandatory process of bargaining is over as of the lockout/strike deadline, the employer is free to offer different terms of employment than those under the expired agreement.  This process was discussed in a recent decision of the OLRB called Neenah Paper, in case you are interested in reading about the history and reason why employers can do this.  This story will develop quickly over the coming hours and days, so follow the newspapers.
So what happens on Sunday?
Well, not sure.  Depends what the employer does, and how the workers chose to respond.  This Toronto Star story suggests some of the things the City might do.  It includes offering a raise, which is interesting, given that the workers didn’t ask for one.  But it also hints that there are plans to start reassigning people and perhaps contracting out some jobs.  If the City lays off workers under these new terms, their reinstatement or terms of their buyout will become part of the issues that go onto the bargaining table.
We enter into some potentially interesting and tricky legal area depending on how things play out.  The employer still can’t offer special arrangements to certain employees and not others.  The union is still the representative of the workers, and the employer still has a duty to bargain in good faith with the union.  The unfair labour practice provisions still apply too, so the employer cannot use this situation to somehow punish people who are strong union supporters or who are exercising their legal rights, such as the right to engage in a work to rule.  So there is a line which an employer that makes unilateral changes to working conditions can cross  and commit an unfair (illegal) labour practice.  Where that line is depends on all of the circumstances. The Labour Board noted this in the Neenah Paper decision linked above when it said this:

In many cases where an employer implements unilaterally terms and conditions of employment the Board may well conclude that the employer is avoiding the union’s bargaining authority. However, given the facts before the Board, there is also no suggestion of that here.

In short, we will have to watch carefully how the employer implements its strategy.  No doubt some labour lawyers are on speed dial.
For example, whether an employer can use its right to make unilateral changes to contract terms to effectively terminate loads of union members is an interesting question. The right of employer to unilaterally change a wage rate or to cut benefits is one thing, but less clear is what happens when the terms that the employer changes are the terms that prevent the employer from firing all of the employees in the bargaining unit.

Consider what happened here.  The employer said it wanted to be able to terminate unionized employees and contract out their jobs, but was hamstrung by collective agreement terms.  Therefore, it proposes in bargaining to remove those terms from the next collective agreement.  Obviously, the workers refuse to vote for an agreement that will allow for their own termination.   So we reach an impasse. The legal question is this: Can the employer simply wait around for the legal lockout date, until the moment the job security clauses in the contract expire, and then one minute into it, announce that it is now going to do what it threatened all along:  contract out the jobs of the unionized workers and fire them all, or a good percentage of them?
I’m not saying that is what the employer is planning.  I don’t know.  But if the plan is to now eliminate bargaining unit jobs in this way, and this is legal, then that would be a pretty effective way for employers that are prepared to contract out their employees’ work to bust the union, and would seriously undermine the right to collective bargaining, wouldn’t it?

But maybe such a strategy would violate Section 72, which prohibits employers from punishing unionized workers who exercise their rights to collective bargaining, or Section 70, which prohibits employers from interfering with representation of workers by their union.  Or, maybe Section 80 would give the workers a mechanism to prevent the employer from contracting out their jobs in this manner.  That section guarantees workers who go on strike a right to return to their job for the first six months of a strike, unless the employer “no longer has persons engaged in performing the work” the employee performed.  Does that mean that workers can avoid being laid off by quickly going on strike, and then requesting to return to their old job?
Any other legal scenarios or puzzles you see?
If the employer makes changes but allows the workers to keep coming to work, then the workers are free to engage in rotating strikes or work to rule campaigns, while continuing to collect their pay.  This is what happened at Canada Post last summer, and it caused the employer to lock out the workers after all.  So we could get into a series of partial strikes and partial lockouts, possibly leading to an all out lockout or strike, with each side trying to blame the other for the disruptions.  In this case, apparently the union has not yet conducted a strike vote, presumably because they were trying to show the public that they don’t want to strike.  However, it might make sense at this point to hold that vote, just so the option is there to protest in some form depending on what the employer does.
If the employer begins to contract out bargaining unit work, being free from collective agreement restraints, we can expect picket lines and hostilities and a bunch of happy lawyers running back and forth to court seeking injunctions for this and that.  It will look a lot like the strike form 2 years ago even if there is no strike.
And of course the workers might just decide to go out on strike and not accept the employer’s amended conditions.  We should know soon enough, presuming a deal is not reached beforehand (which is still possible)
The Rob Ford Flip-Flop on the Benefits of Government Intervention in Labour Relations
Will the Ontario government intervene if a work stoppage ensues?  In the last work stoppage, Rob Ford was pushing for the government to legislate an end to the work stoppage.  He also pushed for the Liberals to intervene in TTC labour relations to prevent work stoppages.  However, he will take the complete opposite position this time, insisting that the Liberals keep their noses out of municipal labour relations.

Why do you think his views on this have changed?  What do you think?  Should the Liberal government simply jump in and order this dispute to interest arbitration as the Federal Tories have been doing with vigour recently?
If not, what explains why governments should intervene in bargaining disputes at the TTC, Air Canada, and Canada Post, but not in bargaining involving Woodbridge transit, Caterpillar, and the City of Toronto?  Can you find any coherent principled explanation for the selective intervention in labour disputes?

Lots of interesting questions to explore as this dispute continued to unfold.