September 10, 2018
Unionized workers in Gander have been locked out by a Kansas-based company called D-J Composites since December 2016. Let that sink in. For almost two years, the company has refused to let its employees come to work. During that time, the company has violated the duty to bargain in good faith in the provincial labour laws on multiple occasions, but as anyone with labour law knowledge knows, the penalties ordered by labour boards for bad faith bargaining are often weak, consisting of little more than an order to stop being bad and return to the bargaining table.
The company has been able to keep the workplace operating without its employees because Newfoundland and Labrador’s labour laws permit employers to hire “replacement workers”, or what the labour movement calls “scabs”. Replacement workers have been crossing the picket line each morning at D-J Composites to perform the work of the locked out employees.
Anti-Replacement Worker Policy
The use of replacement workers obviously escalates a labour conflict. Imagine how you would feel if you have been living on strike pay (couple of hundred dollars a week) for over a year and every day someone passes you to get paid for performing your job. There are infamous labour history moments involving replacement workers. I remember when Canada Post used helicopters to fly replacement workers over the picket lines, and who can forget the famous Stelco strike when replacement workers were flown into a make-shift runway in Hamilton until the United Steelworkers deployed their own Air Force to sweep the runways and prevent the planes from landing.
The hostility created by the use of replacement workers has at various times and in various places caused Canadian governments to prohibit the use of replacement workers. Replacement worker bans are always front and centre on the list of labour law reform demands proposed by the labour movement, and always opposed by employers. Today, only Quebec (Section 109.1) and British Columbia (Section 68) prohibit replacement workers, although the federal Canada Labour Code also includes a weak section that could in theory prevent the use of a replacement worker (see Section 94(2.1)).
In Chapter 42 (The Law of Industrial Conflict) of my Law of Work book (see Box 42.2), I discuss the arguments for and against replacement workers, and I reference some studies. Those studies by industrial relations scholars look at the effects of replacement worker bans on work stoppages. Here is what I write there:
From The Law of Work, Chapter 42: Industrial relations scholars have studied the impact of anti-replacement worker [ARW] laws on strike incidence and duration. These studies find that ARW laws tend to increase the number of strikes, but they are inconclusive on the question of strike duration. In a 2009 study looking at data covering 1978-2003, Professors Duffy and Johnson found that anti-replacement worker legislation in B.C. and Quebec caused an increase in the number of strikes but decreased the length of strikes.* Earlier studies using different methodologies and looking at data up to 1985 similarly found that ARW laws increase the incidence of strikes, but also found the laws increased the duration of strikes.**
* P. Duffy & S. Johnson, “The Impact of Anti-Temporary Replacement Legislation on Work Stoppages: Empirical Evidence from Canada” (2009), 35(1) Can. Public Pol. 100
** J. Budd, “Strike Replacement Legislation and Collective Bargaining: Lessons for the United States” (1996), 35(2) Industrial Relations 245; M. Gunderson, J. Kervin, F. Reid, “The Effect of Labour Relations Legislation on Strike Incidence” (1989), 22(4) Can. J. Econ. 779; M. Gunderson & A. Melino, “The Effects of Public Policy on Strike Duration” (1990), 8(3) J. Lab. Econ.
Filming Replacement Workers
Last week, Unifor elevated the dispute by filming and posting online the names and photos of replacement workers. This tactic has attracted criticism by the usual antiunion factions, but also some people who are generally supportive of labour but who think that the tactic unfairly casts the replacement workers as villains rather than the employer when these people are just trying to put food on the table for their families too.
In the 2013 decision Alberta (Information and Privacy Commissioner) v. UFCW, Local 401, [see Chapter 48 in The Law of Work] the Supreme Court of Canada ruled
that a law that prohibited the collection and use of personal information without consent was unconstitutional insofar as it restricted the right of a union to photograph replacement workers during a lawful work stoppage and post those photos on line. The Court ruled the law infringed on the union’s freedom of expression.
The Court emphasized the importance of expression during a labour dispute, which plays “a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker”. It also noted that people crossing a picket line as replacement workers would “reasonably expect that their image could be caught and disseminated by others such as journalists, for example.”
Industrial Conflict Legal Policy
An interesting aspect of this lockout is that the union, Unifor, has argued for the government to intervene by forcing the dispute to interest arbitration. This position contrasts sharply that taken by the union in another historic work stoppage here in Ontario and by the Ontario NDP during the last election.
Unifor in Newfoundland argued that labour laws should be reformed to empower the labour board to order binding interest arbitration upon the request of one of the parties when the other party has been found in violation of the duty to bargain in good faith, as is the case here.
You may recall that during the York University and Ontario colleges strikes, the unions strongly resisted calls by the employers for the government to intervene by ordering mandatory interest arbitration. They argued that governments should not intervene in collective bargaining by ordering interest arbitration, even in the case of an historically long work stoppage. Ontario NDP leader Andrea Horwath went so far as to say she could not imagine a situation in which her party would legislate an end to a work stoppage.
Questions for Discussion
1. Are the positions of the Ontario NDP and CUPE in the York University strike about government’s use of binding interest arbitration to end long work stoppages inconsistent? Are the situations sufficiently different that an argument can be made that the two arguments can be reconciled?
2. Would you propose any legal reform for dealing with long strikes and lockouts?
3. What are the arguments for and against laws that prohibit employers from using replacement workers during a work stoppage?
4. What do you think of Unifor’s strategy of publishing photos of replacement workers? Do you think that it is a good strategy to pressure those replacement workers and the employer, or will it backfire and turn the sympathy away from the locked out workers?