Damages awarded against employer who uses replacement workers

In the course of its four-month-long lockout of CUPE Local 7000 members, Southern Railway kept a fraction of its trains running by using excluded managers as replacement workers. But a railway can’t run unless its track is maintained. Track maintenance is work that CUPE members do and not many managers are qualified to operate the machinery that’s involved. On January 23, 2015 Southern Rail brought in a contractor, A&B Rail Services, to replace a number of railway ties at a switch area on Annacis Island. Vice Chair Carwana ruled that this was a violation of s.68 of the Labour Relations Code. (See the original decision here.)

The significance of the decision is its ruling that the employer pay damages to the union. This is only the second decision since  the Code was amended in 1992 that the Board has awarded damages for a violation of s.68. 

The purpose of the restriction on the use of replacement workers is to protect the integrity and viability of the bargaining unit and to ensure that collective bargaining disputes do not last any longer than necessary. 

The Board found that the replacement of the switch ties had a beneficial effect on the employer’s ability to serve its customers during the course of the lockout and thus it “has had the effect of prolonging the conflict,” and it diminished the union’s bargaining power.

The amount of damages  was determined to be $5000,  the amount that the employer paid to A&B for that day’s crew. 

The employer appealed the decision under the Board’s reconsideration process in s. 141 of the Code arguing that the Board had no jurisdiction to make an award for  this type of violation.  Since the Code says that the Board may not award damages for a violation of Part 5 of the Code and s. 68 is in Part 5 of the Code, the union would have to go to Court to seek its remedy. The reconsideration panel disagreed. It accepted the union’s argument that the Board has jurisdiction to award damages because a violation of s.68 is also an unfair labour practice and captured by s.6(3)(e) of the Code. Read the full reconsideration decision here.