The Defensive Line: Defence Law Briefing – June 2023

Allied Strike

Employee Strikes and Picketing of Partner Enterprises

Labour disruptions, though not unique to any one industry, can have unique implications in the defence and security sector. For example, and as is related to a past instalment of the Defensive Line, joint ventures or other arrangements where two or more employers share a workspace are more common in defence and security. In the context of a strike, and as was recently learned in British Columbia, this can have unique complications.

In the late Summer and early Fall of this past year, well-known shipbuilder Seaspan ULC had certain of its employees, including tugboat captains and engineers, go on strike in British Columbia. Seaspan is a federally regulated employer and the striking employees worked out of the premises of two provincially regulated employers, Vancouver Shipyards and Vancouver Drydock. Seaspan is the parent organization of both Shipyards and Drydock. As the strike developed, the picketing of Seaspan’s employees took place in such a way as to hinder the access-to and operations of the worksites of both subsidiary organizations; and this, in turn, lead to a situation where certain of the unionized employees of Shipyards and Drydock refused to “cross the picket” created by Seaspan’s employees. The Shipyards and Drydock employees did this even though they were, at least in name, employed by separate employers and also subject to different collective agreements.

Though this strike ultimately resolved itself later in 2022, it led to an interesting decision from the Supreme Court of British Columbia (“BCSC”) that touches upon an issue that is of heightened relevance in the defence and security industry.

This decision of Justice Macintosh of the BCSC was the result of Shipyards and Drydock asking the Court to stop the Seaspan employees from picketing on their property. He ultimately ruled against Shipyards and Drydock and, in doing so, he reviewed the common law surrounding secondary picketing. Secondary picketing occurs where striking employees picket at locations or establishments with whom they have no direct dispute. In the leading case on this subject in Canada, this occurred where Pepsi employees picketed at locations that sold Pepsi products even though they were not directly affiliated with Pepsi’s operations.

In this Seaspan case, the issue of primary versus secondary picketing location was coloured by the fact that Seaspan owned both Shipyards and Drydock. However, much of the legal principles reviewed and expanded upon by the Court are just as relevant to defence employers engaged in joint ventures or simply working with other companies the same premises or toward some common end.

In this Seaspan decision, which can be found here: 2022 BCSC 1791, the Court confirmed that “secondary picketing is generally lawful if it is not tortious or criminal”. In other words, so long as the union and its employees are not doing something otherwise illegal while picketing at the secondary location, they can generally picket that location.

This is an important reminder for defence and security companies generally, particularly those with unionized employees and who work in close collaboration with other enterprises. Striking employees may be able to picket at the location where a joint venture does its work or perhaps at the location of a customer or prime contractor on one of the organizations main projects. Needless to say, this may complicate the relationship with those partners. In the case of the Seaspan strike, and though this was influenced by the fact that Seaspan owned Shipyards and Drydock, the picketing at those quasi-secondary locations resulted in certain employees of Shipyards and Drydock refusing to cross the picket line of the Seaspan employees which, in turn, shut down the operations of both Shipyards and Drydock.

Though Shipyards and Drydock were ultimately unsuccessful at the BCSC, it is interesting to note that Shipyards did ultimately win something. In an application to the British Columbia Labour Relations Board (the “BCLRB”), the Board ultimately ruled that, by refusing to cross the picket line of the Seaspan employees, the Shipyards employees were acting in an illegal strike position. The whole decision can be found here: 2022 BCLRB 146; however, and in short, the BCLRB determined that since the Seaspan-specific employees’ strike was federally regulated, it could not constitute a provincially-recognized or protected strike which the Shipyards employees may have otherwise been entitled to participate in.

At the end of the day, this case reminds us that it is both important to both be aware of all of the risks, but also all of the potential remedies. With this in mind, we thought we would provide a brief refresher on some of the basics surrounding strikes and how an employer may want to handle them:

  1. Employer Rights During an Unlawful Strike

As a general rule, strikes are unlawful if the employer and union are bound by a collective agreement or if the strike requirements provided in the relevant legislation have not been met.[1] There are many examples of unlawful strikes, including: a strike arising out of frustration with the terms of an otherwise operating collective agreement, or where a strike occurs as an attempt by certain employees to gain recognition as a bargaining unit rather than going through the proper certification process. A strike does not require employees walking off the job and forming a picket line but can be include more subtle actions that still cause disruptions in the workplace. These actions could include a slowdown in work, a refusal to work overtime, or a refusal to cross the picket line of another union.[2] We saw the latter become an issue in the Seaspan strike.

If there is an imminent threat of an unlawful strike, or one is ongoing, your organization, in conjunction with its legal counsel, should consider bringing an action before your jurisdiction’s labour relations board. In an unlawful strike situation, expediency is important, and the relevant labour board will likely schedule a hearing for the matter as soon as possible. Whether a strike is unlawful will be a fact driven analysis and depend on your organization’s specific circumstances. If the strike is unlawful, a court has the injunctive power to order the union to stop the strike and the employer may also be able claim damages for the unlawful strike before an arbitration board.[3]

  1. When does a Legal Strike Occur

While striking during the term of a collective agreement in any jurisdiction is typically unlawful, there is a narrow exception that permits peaceful picketing in labour legislation. Typically, (1) the employer and the union must have engaged in good faith collective bargaining, (2) the union must have held a strike vote to determine whether the majority of members are in favour of a strike, and (3) the union must have met with an appointed conciliation officer and receive a no-board notice from this officer. However, these requirements may vary by jurisdiction.

Before or after the start of a strike, the employer can request that the employees vote on whether to accept the last offer the employer made to the union.[4] Generally, both the employer and the employees have an interest in avoiding any strike action, so it will be important for the employer to consider their strategy and interests during any collective bargaining meeting before requesting a final offer vote.

  1. Employer Obligations During a Legal Strike

If a legal strike does occur, employees are allowed to peacefully picket the entrance of the workplace and employers have certain obligations to follow. This is generally considered primary picketing. However, and as noted above, secondary picketing can occur elsewhere and this can be more concerning. The employer’s rights and obligations vary by jurisdiction in Canada, and we recommend familiarizing yourself with the labour laws which apply to the jurisdictions within which your organization operates. For example, employers in British Columbia and Quebec are extremely limited in hiring replacement workers during a strike and the federal jurisdiction is contemplating similar legislation. This can mean that only management employees who work at the same location and non-bargaining unit employees who also work at the same location can perform the work of the striking bargaining unit members.[5] Other jurisdictions, such as Ontario, do not currently regulate the use of replacement workers, so employers may hire replacement workers during a strike.

Employers also have obligations regarding dismissing and disciplining employees during a strike. During a strike, employees cannot be discharged or face discipline without just cause. Legislation also prohibits any strike-related misconduct or retaining a service to break the strike.[6] If a union member wishes to cross their own picket line and report to work, they may do so, however, the union will likely fine the employee for breaching the union’s constitution which likely provides a disincentive for any employee to cross their union’s picket line.

  1. Important Takeaways

The disruption to a business that can be caused by a strike is significant. As the Seaspan issue discussed above highlights, a strike can impact your own organization’s operations, but also those of your organization’s partners.

The best way to avoid a picket line at your workplace is to develop a strong negotiation strategy for collective bargaining sessions. The best strategy will depend on the organization’s specific situation including assessing the demands of each party, the compensation and benefit standards in the industry, and the relationship with the unions. With that being said strikes do happen and knowing your organization’s rights and responsibilities during a strike, including knowing when the strike might be illegal, as partially true in Seaspan’s case above, can help mitigate some of the damage.

If your organization needs help negotiating a new collective agreement, or it is concerned about an impending strike, please contact Emond Harnden LLP’s Defence & Security Team using the details below. We are dedicated exclusively to assisting employers with labour and employment law.

[1] See for example: Labour Relations Act, 1995, SO 1995, c 1, Sched A, s. 79(1). 

[2] Lafarge Canada Inc v Teamsters, Local 141 (2001), 75 C.L.R.B.R. (2d) 137 (Ont LRB).

[3] See for example: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 103(1).

[4] See for example: Labour Relations Act, 1995, SO 1995, c 1, Sched A, s 42.

[5] Port Transport Inc and Unifor, Local VCTA, Re (2016), 2016 CarswellBC 1584.

[6] See for example: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 80.1.

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