This memorandum is further to our discussions regarding potential issues and responses from a contractor if members of the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers and Ironworkers District Council of Ontario (the “Ironworkers”) engage in a labour stoppage (strike) on August 19, 2019.
If you have any questions regarding this or other employment or labour relations issues, please contact Keith Burkhardt at 416.603.0700 or firstname.lastname@example.org.
On May 1, 2019, all collective agreements between a designated construction trade union (i.e. the Ironworkers) and a designated employer association (i.e. the Ontario Erectors Association, Incorporated (the “OEA”)) expired.
The vast majority of collective agreements (including those related to the electricians, carpenters, pipefitters, sheet metal workers, labourers, operating engineers and iron workers (rodmen)) have been renewed.
To date, the Ironworkers and OEA have not been able to reach an agreement on a renewal collective agreement and the Ironworkers will be in a legal strike position effective 12:01am onAugust 19, 2019.
OVERVIEW OF PICKET LINES
If a strike occurs, it is likely the striking union will set up a picket line at the entrance to various jobsites around the Province of Ontario. Picketing could also take place at the office of the OEA or at the office of key members of the employer bargaining committee. The picket line could consist of workers who have regularly performed work at that site as well as other union leaders, members and supporters. There is no limit to the number of pickets who can be on a picket line.
A striking union can lawfully set up a picket line in any public place. However, pickets cannot trespass on private property and, if they are on private property (either at an office, jobsite or other location), the property owner can ask the pickets to leave or call the police to have them removed as well as legal counsel who can draft a trespass notice. It is important to remember the edge of a roadway will generally be public property and it is not uncommon for a union to set up a picket line in the small area between the active roadway and the private property line.
When a picket line is in place, pickets are permitted to provide information to anyone seeking to enter or leave the site and to delay entry or departure for a reasonable period of time to communicate the union’s message. However, pickets are not permitted to prohibit an individual from entering or leaving the site. That said, if picketers delay each individual (or vehicle ) for two or three minutes, it will often mean those further back in the line will be significantly delayed in crossing the picket line.
If a picket line is in place, it is usually advisable to inquire of the union representative who appears to have control of the picket line (a “picket line captain”) how long the union intends to delay individuals. If the position of the union is reasonable, it is advisable to confirm this “picket line protocol” in writing.
When crossing a picket line, individuals should consider the following:
- Remain calm – be professional
- Avoid all means of confrontation (i.e., honking horn)
- Do not “run the picket line” or attempt to nudge through the picket line
- Wait until the way is clear before proceeding to the picket line – remain in single file and do not pull alongside other vehicles unless directed to do so
- Do not exit any vehicle to speak with picketers
- If you do not wish to engage with picketers,
– keep vehicle windows up, lock doors and turn up the radio
– do not discuss labour relations or picket line issues with picketers
- Be prepared to hear abusive or vulgar language
- If you receive damage to a vehicle, immediately report this after you are through the picket line
– Take photos of any damage
Put simply, whatever can be done to keep things calm is worth it in the long run.
If a union does not allow an individual to cross the picket line or is being excessively abusive to those who do, the company should contact legal counsel and consider whether it is appropriate to commence injunction proceedings in the courts.
Finally, tensions can increase quickly on a picket line. However, assault (or other criminal behaviour) is not to be tolerated and courts will hold individuals responsible for this type of activity even if related to a picket line.
MAINTAINING OPERATIONS DURING A LABOUR STOPPAGE
During a labour stoppage, a company is, in effect, “non-union” in respect of that trade. For example, if the Ironworkers commence a strike, a contractor is temporarily relieved of any obligations to that union and can choose to employ non-union individuals to perform work, or subcontract to a company that is not in contractual relations with that union. This legal status remains in place until the labour stoppage is over.
Workers who are members of other, non-striking, trades are required to attend at work, even if that means crossing a picket line. If members of a non-striking trade refuse to cross a picket line, exercise good judgement on how you wish to respond. For example, if the workers refuse for a single day, it may make sense to wait it out (depending on the nature of the work not being done and the impact on overall operations). That said, if the refusal lasts multiple days or if the company is aware of union leaders encouraging workers to not cross another union’s picket line, the company should contact legal counsel and consider whether it is appropriate to commence unlawful strike proceedings at the Ontario Labour Relations Board. Except in exceptional circumstances, an unlawful strike application is not decided overnight, and often takes a week to be addressed.
We trust the foregoing is helpful to you. If you would like to discuss any aspect of this memorandum, or have further questions, please contact me at your convenience.
Jack Mesley, President
NEGOTIATIONS WITH THE IRONWORKERS WILL CONTINUE AUGUST 15th and 16th, 2019.