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Howard Levitt: Workplace Blockades are an Illegal Union Tactic that can Backfire on Members

posted 2 years ago

Two recent cases against unions shows why it’s in the best interest of both parties to ensure the survival and success of the employer.

Unions have a long history in Canada, and in virtually every industrialized nation on earth. The ironic exceptions are the Soviet Union and China.

The five-day, forty-hour work week, decent working conditions, overtime pay, maternity leave and many other benefits that we regard as “normal” have their origins, in large part, in lobbying by trade unions and their allied political parties.

It is recognized by the Charter and the courts that unions have a constitutionally protected right to picket when they are on strike.

But there are limitations on how a union can picket. Despite the instinct of many of their leaders, unions are still governed by the law of the land. For example, violence and destruction of property are obviously illegal and not subject to any constitutional or other protection. It should be obvious that no illegal activity is ever constitutionally protected.

In particular, striking union members are not permitted to obstruct the entry and exit to employers’ places of business.

In other words, a union may not blockade the employer’s facility. In certain circumstances, unions may delay the entry and exit to a place of business for a few minutes to hand out leaflets and information, but a union can never blockade an employer’s premises and prevent it from doing business. This is well known both in labour law circles and by unions themselves. Some even mention it in their websites in describing picketing to their members.

Yet recently, we have had to obtain injunctions against unions in two separate cases where they blockaded their members’ work premises. In both cases, not only were the blockades found to be illegal by the courts, which issued orders prohibiting the misconduct, but, considering the larger picture, both blockades were directly contrary to the union members’ own interests.

In the first case, a collective agreement had expired, and the union leadership had agreed to a new collective agreement, which essentially maintained the status quo.

The business was already operating on the thinnest of margins and losing money. Prospects for the future appeared desultory. The local membership rejected the agreement that had been negotiated by their own union, went on strike and blockaded the premises. The union publicly stated that the parent corporation of the employer was doing well and was paying dividends. This presumably had the effect of inflaming the passions of the members who failed to distinguish between their autonomous struggling employer and its parent company.

We had little trouble obtaining an injunction against the union preventing them from continuing the blockade. But in the interim, considerable damage was done. Customers were lost and financial harm wreaked on this company, which it could ill afford.

While the strike was ultimately settled, the business was on the verge of closing, which would have resulted in no jobs for anyone. It remains to be seen whether the union’s conduct has permanently damaged the company’s future viability. Perhaps more importantly, any goodwill the union had with the company was frittered away. And for nothing. The union ultimately accepted almost what had been initially offered but with weeks of lost wages during the strike, that were not made up by strike pay.

The second case is even more interesting, as it was in an industry extremely adversely affected by the pandemic. The company has no orders on its books and is trying to rebuild its brand to sell products. To make matters more difficult, its lease is expiring, and it has to move in less than a year.

The union went on strike because it wanted a “guarantee,” not a “best effort” but an actual “guarantee,” that the company would relocate to an area convenient to its members and guarantee them jobs there.

In effect, the union wanted guaranteed jobs for their members for life. The union then blockaded the premises to attempt to force the employer to accede to its demands, until we obtained an injunction preventing them from doing so.

Even then, the union ignored the court order – going so far as to publicly insult the judge – until it was faced with the threat of additional legal sanctions, including possible fines or imprisonment.

In both cases, I believe the unions’ strategies were short-sighted.

Many unions regard employers as “the enemy.” To be fair, many companies feel the same way about unions and, given these latest examples, often for good reason. However, it is in the best interest of both labour and management to ensure not only the survival but also the success of the employer.

If the company you are working for closes down, it doesn’t matter how good your collective agreement was – you are still out of work.

Got a question about employment law during COVID-19? Write to Howard at [email protected].

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Peter Carey is with Levitt Sheikh.

By Howard Levitt and Peter Carey


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