Unionized workers’ right to strike can be misunderstood

By Tony Poland, LegalMatters Staff • While unionized workers may have a right to strike it is not an absolute right and the wrong timing can have legal and financial repercussions, says Toronto employment lawyer Jeffrey M. Andrew.

“People generally believe a strike is when people cease working and start picketing the employer because that is how it is presented in the media,” Andrew, a partner with Cavalluzzo LLP. “But a strike is defined more broadly in labour statutes. It is basically a withdrawal or restriction of work of any kind under a common understanding.

“What it essentially requires is a group of people coming together in a job action,” he tells LegalMattersCanada.ca. “It is usually done at the behest of the union. But not always. The definition of a strike is broader than what people popularly believe in terms of the activities that can get you in trouble.”

Strikes don’t always involve walking a picket line

He explains that strikes don’t necessarily involve walking the picket line. It can be a refusal to work overtime or perform certain tasks, for example. 

“It should also be noted that strike actions have occurred even when the union didn’t actually call for them and wasn’t involved in organizing them,” says Andrew. “If a group of people in the workplace agree, either formally or informally, not to do something and it restricts production, that is a strike.”

What makes a strike legal or illegal depends on when the action occurs, he says.

“Under various labour statutes, there is a discrete period when it is legal to withdraw services in any form,” says Andrew. “That occurs when the collective agreement is no longer in force and the conciliation procedures are done.”

He says when a collective agreement is about to expire either the union or the employer will give notice that they want to bargain. If a deal is not reached, the two sides can request conciliation. If the conciliator fails, the Ontario Ministry of Labour, for example, can issue a “no board report,” which means a board of conciliation is not appointed. Roughly two weeks after that, it is legal for workers to strike. 

“It is also legal for the employer to lock workers out at that time,” Andrew says. “That is basically the employer saying, ‘Don’t come in, we are not paying you. When you decide you want to work under our terms, you can return.’”

Wildcat strikes can come at a cost

Walking off the job while a collective agreement is in place is commonly referred to as a wildcat strike. He says these strikes can be costly to the union and its members, pointing to a pair of illegal strikes by healthcare workers in Alberta.

In 1988, the United Nurses of Alberta was charged with criminal contempt of court and later fined more than $425,000 after going on strike despite being prohibited by provincial law. Individual nurses were charged with civil contempt, which came with the threat of jail time and a $1,000 fine.

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Two years ago, the Alberta Union of Provincial Employees, which represents healthcare workers, was fined $400,000 after ignoring a Labour Relations Board order to return to work.

“If the labour board determines a strike is unlawful, it is possible for an employer go to court to enforce a cease-and-desist order,” says Andrew. “Once it becomes a court order, individuals can be held responsible for contempt of court and, in very rare circumstances, people can be jailed.”

He says in 1981, Canadian Union of Public Employees president Grace Hartman and two other union officials were jailed for their role in a 1980 strike by Ontario hospital workers. Hartman was sentenced to 45 days in custody after she and 17 other CUPE members pleaded guilty to contempt of court charges following their defiance of a back-to-work order. Two officials were jailed for 15 days while the rest received suspended sentences and fines of up to $300.

‘These union leaders were seen as heroes’

“For the most part, it is the union as a whole that faces the consequences for defying a back-to-work order but individuals can be held liable as well,” says Andrew. “These union leaders were seen as heroes by their members and others in the community for engaging in civil disobedience to try to improve the lives of people. But this comes at a personal cost.”

One common job action employed by unions is “work-to-rule,” he says, explaining employees meet the minimum requirements of their jobs and no more in an effort to reduce output and efficiency. This could mean refusing overtime or failing to do extra tasks not specifically covered in the collective agreement.

“But this concept is often misunderstood,” Andrew says. “People will work-to-rule while the collective agreement is in force. If you’re not in a legal strike position, that is unlawful. 

“The employer can make an application for a declaration that it is an illegal strike and the Labour Board in Ontario moves very quickly,” Andrew adds. “They will warn people if they continue this job action, the matter can be brought to court and they can be subject to contempt charges.”

However, the employer would have to show that it is done by a group under a common understanding, he says. 

“An individual worker working to rule might face discipline from the company but it is not a violation of the legal statutes in terms of being an unlawful strike,” Andrew says.