Workers strike to shut down – or at least slow down – the employer’s business. That’s the pressure that can win demands at the bargaining table. Employers try what they can to resist this pressure, including by relying on replacement workers or scabs.

Unions should go into strike action prepared to fight back against illegal replacement work. This post will tell you what you can and should do to be ready to put a stop to illegal scabbing and make the employer feel the full force of the strike.

The use of replacement workers is addressed in Section 68 and Section 6(3)(e) of the Labour Code. With limited exceptions, during a strike employers can only assign persons hired prior to the notice to bargain to do the work of the bargaining unit.

Let’s break down those two key phrases:

“persons hired prior to the notice to bargain”

During a strike the only people who can perform the work of the bargaining unit are those who were engaged by the employer prior to the date of notice to bargain.

Bargaining can be a lengthy process and it is often the case that unions only contemplate a strike after many months of bargaining. To prepare for the possibility of a strike unions should make note of the non-bargaining unit workers (usually managers) as of the date of notice to bargain and keep track of staffing changes that occur after that date. Unions should gather this information from members: who is your manager? Who is their manager? Keep a list and update it as needed.

Where a non-bargaining unit worker leaves after the date of notice to bargain and is replaced, the new replacement is not entitled to perform the work of the bargaining unit even though the total number of non-bargaining unit personnel is unchanged. Despite employers making this argument a number of times, the Board has been clear that the restriction attaches to the personnel and not just the number: BCLRB No. B127/2019.

“the work of the bargaining unit”

You may be surprised to learn that the “work of the bargaining unit” is not the same as “bargaining unit work”! In replacement worker cases, the Labour Board considers whether the “work performed by replacement workers would have actually been performed by an employee in the unit but for the labour dispute”: BCLRB No. B232/94, p.13. This test captures “shared work” situations, including where work is technically defined as bargaining unit work under the Collective Agreement but in reality there has been a practice of non-bargaining unit personnel performing the task as well as the bargaining unit.

For example, where the union asserted impermissible replacement workers were performing the work of the bargaining unit by cleaning hotel rooms, the Board engaged in an extensive analysis of when and to what extent cleaning supervisors cleaned rooms prior to the strike: BCLRB No. B156/2019. The union won their complaint by calling bargaining unit cleaners to break down how the work is performed ordinarily.

Non-bargaining unit personnel hired after the date of notice to bargain are also prohibited from backfilling, which means doing the work of someone hired before the date of notice to bargain so that person can be free to do the work of the bargaining unit.

In preparing for the possibility of a strike, unions should gather information from the membership about the extent to which any of their work is shared with non-bargaining unit personnel. This can also be helpful to identify areas where the union may want to give notice at the bargaining table to end the encroachment into bargaining unit work.

You know who is not allowed to work & what they’re not allowed to do -- but how can you prove it?

Unions observing a workplace from the picket line typically cannot access information about how work is being done inside. Replacement worker complaints are heard on an expedited basis and with the understanding that information is likely to be circumstantial. The Labour Board considers applications and evidence through that unique perspective, allowing unions to draw on a broad base of evidentiary tools, including drawing inferences from circumstantial evidence, asking the Board to draw adverse inferences, or shifting the evidentiary onus to the employer.

For example, in BCLRB No. B175 2019 the Union had only two, seemingly tenuous, pieces of evidence. First, the union had evidence that a manager hired after notice to bargain had been in a hotel lobby wearing a work uniform she had previously worn while performing the work of the bargaining unit. Second, the union had an Instagram post showing a manager hired after notice to bargain standing next to a dishwasher. The Union successfully argued that, in the absence of any ability to otherwise enter or view the kitchen to determine who is operating the big dishwasher during the strike, the photograph was sufficient to raise a reasonable inference that the employer was using that person to operate the dishwasher contrary to the Code. The onus shifted and the employer had to call its case first. The union also successfully argued that the employer should be ordered to disclose what work was done by the second manager on the day she was seen in the lobby. The employer was required to disclose that the manager had worked in breach of the Code. The lesson is that through advocacy at the Labour Board unions can win replacement worker complaints despite very limited access to information on the inside.

Take-aways:

· During a strike only persons hired prior to the date of notice to bargain can fill in for bargaining unit members

· The restriction applies to “work of the bargaining unit” meaning that unions must be alive to any “shared work”

· If prior to the strike work tasks were done by both bargaining unit and non-bargaining unit workers, the employer will be restricted to the same ratio during the strike - its helpful to gather information on the extent of shared work prior to the strike

· Preparing ahead is very helpful as replacement worker complaints are heard on an expedited basis

· Unions should obtain legal advice early in the process to ensure they are prepared to hold employers accountable and to restrict access to scab labour