Class Notes (839,394)
Canada (511,324)
Lecture

notes part two

17 Pages
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Department
Labour Studies
Course Code
LABRST 3C03
Professor
John Barkans

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March 27 3 legal forms in regulating strike action You may be able to call upon the courts OLRB Arbitration Courts jurisdicition Criminal jurisdiction Civil jurisdiction If you have strike or picketing, violence, tort law, provincial offense, public highway etc Not main aspect of courts – criminal charges to get laid but not as common A sec. Of the criminal code C.C. 423(1)(f) Every guilty of an indictable offense (with judge and jury) liable to a term in prison up to five yrs Or guilty of an offense (only in front of judge) to max of 6 months The crown attorney chooses how to proceed, indictment or conviction If you picket where a person works, you are making your point known 423(2) Exception **historically important A person who goes to a place only to communicate You’re not guilty if you go to a work place to communicate info Picketers give pamphlets, talk to passerbys Civil action You are suing 2 interrelated remedies: claiming a civil wrong and damage, and get injunction Ie you are suing because someone stole your trademark name to sell products, you want have the damages covered that were caused by this In the meantime until trial is resovled, your name is still being used You can try to get a injunction: until we get a trial, we want that wrong stopped right away, so plaintaiff is no long er harmed In a labour dispute, can you bring a civil action against a trade union? NO Rights of labour act But you can still bring a civil action against trade union members And an injuction (stop it now) before the trial gets resolved You need a civil wrong – link the picketing to a wrong If any crime has been committed: assault, trespass, intimidation, nuissance – you have cause of action, sue for civil action and get injunction Any breach of a provincial statue Can’t impede traffic – Highway Traffic Act OLRA can’t be breached Any crimes, torts, provincial offenses, violating acts = will give you a cause of action to apply for injunction to stop it Ie breach of contract Economic torts ie The third party had a contract with your employer – clause says if there is a strike and we cannot fill the contract, there is no breach of contract – escape clause 2 form OLRB The board has been given the statutory duty to make the determination whether there is a strike or lock out happening..it’s up to the OLRB Is this a strike or lockout? If it is either, is it legal? Timelines are good? Had strike vote? Procedural hoops satisfied? Etc Ie the teachers strike Were they involved in the strike? OLRB had to determine. Then if so was it legal? Determined not legal because they had an active collective agreement If illegal strike Make sec 96 complaint to labour board This union is in a illegal strike, we want a remedy Yes, it’s a strike, and yes, it’s an illegal strike 96(4) If unlawful strike or lockout, there are other options Sec 100 If the board determines its a strike and an illegal one, the board can make a declaration and give direction We declare that this is an unlawful strike and direct you to cease and desist immediately Sec 102 As employer you made sec 96 complaint to labour board about illegal strike Board agreed and sec 102 says you can take this declaration and file it in superior court so that it becomes a court order If you break court order (where board says its an unlawful order), you can be filed for being in contempt of court. Penalty is jail time What is interrelation between courts and olrb? The board is interested in determining whether legal or illegal strike or lockout If legal, you need court injuction to restrain picketing 3rd Arbitrators Only get involved when theres an active cba If active cba, supreme court has said, for any dispute arising out of inforcement of cba, arbitrators have exclusive decisions If employer wants to get damages from union, because union provoked strike or didn’t try to end strike, they are ousted from using the courts..the arbitrators have exclusive jurisdiction Ie s.46 every single cba is deemed to have a clause that says no strikes during term of cba if ca hasn’t expired, but there is a job action and employer thinks it’s a strike, the employer can go to OLRB to determine whether its a legal strike then employer can file a grievance: union didn’t do enough or encouraged strike and as a result we suffered 100 000 in damages arbitrator will find whether it was legal only arbitrator can decide, not court, because cba is active -- Case of Weber vs Ont Hydro Cba is active Weber had back probs, takes an extended leave of absence Cba stipulated weber gets sick benefits Hydro thinks weber is faking Hydro hires pi and pi uses false identity to enter house and steals papers from weber Hydro cuts off benefits and fines him for abusing sick leave Weber files a grievance with an arbitrator – he can’t take to court because of active ca Also brings a civil action for trespass, breach of charter rights, invasion of privacy, fraud Not related to cba so he can sue for this Supreme court says he can’t sue, revolves around denial of sick benefits If active cba, and you want damages, you need to go through arbitration -- Regulating picketing Cases Hersees of Woodstock v. Goldstein Deacon clothing provider for Hersees In a legal strike position but didn’t Because not a strong union Primary picketing – picketing your employers Secondary picketing at Hersees took place with pamphlets Tried to discourage ppl to shop at Hersees Freedom of expression (Charter of Rights) Amalgamated clothing union for Deacon Deacon fills orders for Hersees Not direct relationship between union and Hersees Two guys, one placard Hersees: Can’t use arbitrator – no current cba Can’t use CLRB – it’s a secondary boycott Can only use civil courts Hersees uses civil court to order injunction to stop now Hersees needs a cause of action, a civil wrong: economic tort of inducing a breach of contract The union is trying to get hersees to break contract with Deacon Inferred with placard that Hersees has done something wrong – defamation, false information; links them to a dispute although none Nuisance, ppl scared to cross picket line Hersees centers union trying to get Hersees to break contract with Deacon Hersees also focuses on ‘freedom of commerce’ vs picketing, only beneficial to a particular class, business interests are for the benefit of all Court says there is no precedent so he can make it up as he goes along Secondary picketing is illegal per se (of itself) If it’s secondary picketing, you are in trouble...all that’s needed is to show that it’s secondary picketing and it will be indicted 2 case 2002 Pepsi Cola v. Retail Union Legal strike, replacement workers by Pepsi Union workers went to replacement workers hotel to give info Blocked entrances, went to mgts homes Secondary picketing at hotel New law now: Secondary picketing is legal per se unless it involves criminal conduct – wrong action model The wrongful action model – all picketing is legal Torts p 271 new model Hersees said they had no orders with Deacon coming Union says they saw they had an order Hersees said union said to break contract but H said they didn’t have any So court used two affadavits Back to pepsi Different analysis..wrongful action p.271 new law be careful of any secondary picketing do not get into signalling effect, only spread info signalling effect of picketing – at some point picketing can become coercive and move beyond persuasion but coercion. If secondary picketing invokes signalling effect, it needs to be restrained what can and can’t be done in secondary picketing? Can supply info Can’t intimidate Can’t take criminal action Can’t have too many picketers as to not deter customers, would create a psychological barrier Before 2002 Pepsi Cola, union could not picket Individuals have the right, but not unions Pepsi Cola case changed this Unions could leave pamphlet but be really careful what you do, what you say, how many picketers you have.. -- Cancoil thermal corp v Abbott Picketers holding up cars Cancoil wanted cease and desist but court allowed it Employer Cancoil was unreasonable Court wanted to work out a protocol but Cancoil wouldn’t meet with court The courts of justice act has changed the rules about getting injunctions S. 102 You have to give notice to the other side of injunction Responding party gives evidence in affavadit s. 103 court needs to be satisfied that you made reasonable efforts to get the police to assist stopping the picketing and they were unsuccessful unions have tried to do mass picketing but police would disperse its devastating to start a strike, get picketing going, on court junction makes you stop..deflates action, leaves you powerless april 3 fed or prov jurisd..which laws apply are you employee or inde contractor organizing drive ..sign min 40% for barga unit submit application for certification, give proof of 40%, stat. Freeze kicks in if win vote, get certified unfair practices, get remedy from board, another vote then certified sec 16 kicks in notice for desire to bargain freeze continues duty to bargain in good faith impass.. want to engage in economic warfare, strikes be in timeframe then cba negotiated..collective employ contract signed by the now exclusive barg agent (unio
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