Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 6

8.6.0 Participation

The disentitling provisions in cases of labour disputes do not apply if the claimant proves, among other things ^{Footnote 1} , that he or she is not participating in the labour dispute that caused the stoppage of work.

The fact that other workers of the claimant's grade or class are participating does not affect the claimant's entitlement to benefits.

8.6.1 Participation defined

A worker may participate in a labour dispute in many ways. But it is participation in the dispute per se that must be examined, which is not necessarily the same thing as participation in the stoppage of work ^{Footnote 2} .

It is evident that a person participates in a dispute when he or she is a party to the dispute that is when he or she is negotiating with the employer, usually through a representative. It is therefore important to distinguish who is a party to the dispute and who has a direct interest in it in order to determine those who by that fact participate in the dispute. In this context, the fact that a person disagrees with the demands of the group of persons who, like him or her, are parties to the dispute or who have a direct interest in it, or even with the demands of the union which represents them, does not change the principle.

Participation may take other forms: rejection of the employer's offers, recruiting union members, signing a petition, attending meetings, passing a resolution supporting strikers, voting, engaging in a slow-down, submitting a conditional resignation, refusal to work or to obey orders or to handle "hot" materials, failing to report for work, withdrawing services, walkout or leaving the job, and participating in or honouring a picket line.

These traditional forms of participation are nothing more or less than an expression of support for the demands of employees who are usually unionized and in dispute with their employer. They generally characterize the actions and attitudes of these very workers who are parties to the dispute who have a direct interest in it. It may also be that out of solidarity for these workers, other persons take an active position in respect of the dispute ^{Footnote 3} .

Mere expressions of sympathy with those involved in the labour dispute are not in and of themselves synonymous with participation. What must be examined are facts and actions as such.

Direct participation in the dispute is not required ^{Footnote 4} . In one case it had been held that a claimant did not participate in a dispute because the behaviour was more of a co-owner than as an employee involved in the dispute.

In other respects, the fact that, despite a stoppage of work attributable to a dispute, some people keep on doing their own duties or even those usually carried out by the workers involved in the dispute, should not be considered as a form of participation in the dispute. It is difficult to conceive that, in this context, to carry on in employment could be viewed as a kind of support of the employer's position in the dispute.

8.6.2 Union or other representation

When a union or another association represents one of the parties to the dispute, in principle all members for whom the union or association is negotiating are considered to be participants. For example, a resolution adopted by union leaders in support of a strike by another union binds the entire membership, thereby making it a participant in the dispute ^{Footnote 5} .

The fact that an employee belongs to a union or another association does not necessarily mean that the union has been given carte blanche to act in the member's name on all matters. Rather, the claimant's actions and position vis-à-vis the dispute are what serve as guides to claimant's participation in it.

It has been held that employees belonging to a union involved in a dispute are participants in one or more of the following circumstances: if they follow the position established by the union, attend a union meeting where a decision is taken to go on strike or to adopt other pressure tactics, fail or refuse to go to work, and respect a picket line or join one under orders from the union. There are scores of examples of such support being given voluntarily by an employee to the union. It need be neither spectacular nor on a grand scale; the simple fact of not expressing one's disagreement or dissociating oneself from one's union's demands may amount to participation in the dispute ^{Footnote 6} . It must be recalled that the fact that a person is a party to the dispute is sufficient to conclude that he or she is participating ^{Footnote 7} .

Union membership is thus not conclusive of participation, but is an indication thereof ^{Footnote 8} . A union may take action beyond its mandate or employees may dissociate themselves from the stand taken by it. In other instances, the union may be acting on behalf of only a portion of its membership.

Whatever that may be, one should not lose sight that the position of an individual with respect to the dispute has no real value if a union or another association is duly accredited. Disagreement with the union or with the other association and open disapproval do not change a thing in the debate as a whole unless the group as an entity expresses a common disagreement.

Participation is clearly established if the employees have an authorized representative at the negotiating table. Even union members absent on leave would be regarded as participating ^{Footnote 9} . The fact that a person belongs to a different union or is not a union member may be an indication that the claimant is personally not a participant in the dispute, unless he or she is nevertheless a party to the dispute ^{Footnote 10} .

8.6.3 Honouring the picket line

Setting up a picket line is certainly one of the most decisive manifestations, at least to the outside world, of the existence of a labour dispute. Even if it is usually set up when a strike occurs, a picket line may also appear when the employer has decided to reduce operations because of a dispute or to shut down the establishment until the dispute is resolved. It goes without saying that honouring a picket line loses all significance when there is a total lock-out, because clearly no duties can be assigned to those who report for work ^{Footnote 11} , but to those who are a party to it, it gives obvious proof of participation.

Unionized workers traditionally honour picket lines as a form of trade union solidarity ^{Footnote 12} . Honouring a picket line, whether by solidarity or out of adherence to union principles, or any refusal to cross a peaceful picket line, is participation within the dictionary meaning of the word. The fact that a clause in the collective agreement stipulates that employees who refuse to cross a picket line do not violate the contract, or that another clause provides that, where a picket line is set up, the collective agreement is deemed to be terminated, changes absolutely nothing.

Thus, workers who refuse to cross a picket line and who fail to report for work find themselves on the side of the strikers and supporting their demands ^{Footnote 13} . It would be contrary to the purpose of the statute to consider that they are still entitled to benefit. On the other hand, when workers who are not involved in a dispute cross the picket line, this does not mean that they are participating in the dispute by supporting their employer; they are merely honouring the contract of service that binds them to their employer ^{Footnote 14} .

Whether honouring the picket line stems from personal convictions or a spouse's advice rather than from union policy is immaterial. Participation depends on whether a picket line was honoured and not whether there were good reasons for so doing. The issue is whether the refusal or failure to cross the picket line amounts to a voluntary withdrawal of labour ^{Footnote 15} .

8.6.4 Lay-off or no work available

If an employee is laid off or is told that the recall is cancelled or is otherwise told not to report for work, the mere fact that this employee would not have been prepared to cross the picket line falls short of participation ^{Footnote 16} . Of course, this applies only to the extent that a duly authorized person has given information of the lay-off, cancellation of the recall to work or equivalent instructions.

Similarly, a group of employees do not participate in a dispute if there are definite signs that work would not have been available by reason of the strikers not being at work ^{Footnote 17} . But if the employer does have work available, the question of how long this work will last is irrelevant so long as there is some. Self-serving statements made by an employer in a vague and general manner should be carefully scrutinized.

Sometimes an employer will suspend all operations when informed by a union of its intention to honour the picket line, or the employer will lay off employees because they have failed to report for work. In this case, the employees would be treated as participants. Should there be doubt as to who took the initiative of interrupting work, the workers' failure to approach the employer with a view to informing and assuring the employer of their willingness to continue their work will be held against them.

An unsupported contention that work would not have been available for plasterers because of a labourers' strike was not accepted. Where the majority of labourers crossed the carpenters' picket line to discover there was no work, the failure of some of them to do the same was not participation because they knew that no work was available.

At some premises, for example, those where longshore workers are employed, a special system is used to inform employees where and when work is available. If work is available and workers really intend to work, they cannot take refuge in purely technical considerations and argue that they were not called in the official way.

8.6.5 Right to cross picket line

Picketing falls under the Criminal Code and is permitted by law if it is conducted in a peaceful and orderly manner ^{Footnote 18} . Its purpose is to publicize the existence of a strike and verbally to persuade workers of the merits of the strikers' cause. Strikers may not deny access to anyone going to work, and every employee has the lawful and undeniable right to cross a picket line. Legal remedies exist to protect this right.

There can be no presumption of an inherent risk of violence because of the presence of a picket line. Although the possibility of violence often exists, it cannot be assumed that law and reason will not prevail and that an attempt by workers to cross the picket line will necessarily result in violence. Such an assumption would be tantamount to saying that the legislator sanctions violence and public disorder.

8.6.6 Voluntary withdrawal of labour

Refusal or failure to cross a picket line constitutes participation if it amounts to a voluntary withdrawal of labour ^{Footnote 19} . Whether this is so in a particular case is usually a question of fact. It is up to the claimant to show non-participation by providing rebuttal of voluntary withdrawal ^{Footnote 20} .

Withdrawal of labour resulting from a refusal or failure to cross the picket line is presumed to be voluntary and in sympathy with the strikers, and therefore amounts to participation. This presumption of fact is based on the following principle: when workers, or the union or the association with their expressed and implied consent, decide not to resort to the available legal remedies to exercise their right to cross a picket line, this decision is a voluntary one.

Even if the claimants' union or association decides to honour the picket line, they are still free to act on their own judgement and consider whether they prefer to follow or to ignore the decision taken by the union or the association. This choice, one that workers are frequently called upon to make, cannot, in the eyes of the law, be deemed involuntary.

To enforce union requirements, union rules sometimes provide for fines or expulsion; in other cases, a non-striker may fear disgrace, the stigma of being labeled a scab with all that this may imply or the possibility of no longer being able to obtain work again in the worker's trade ^{Footnote 21} . None of these reasons renders the withdrawal of labour involuntary. Such sanctions and fears are the consequence of the free choice of workers to organize themselves for a common goal, namely betterment of their working conditions.

8.6.7 Rebuttal of voluntary withdrawal

When a claimant does not cross a picket line, there is a strong presumption of doing so at the request of members of the striking union to rally in their support and pressure the employer to accept their demands. This presumption may be rebutted with evidence that the claimant failed to cross the picket line because of legitimate and reasonable fear of violent reprisals ^{Footnote 22} .

If he or she really wants to work, a non-striker or his or her union should take such reasonable action as is feasible to attain that objective. What is feasible will depend on the particular situation.

The most persuasive evidence of the non-striker's desire to continue working is a genuine effort to convince the picketers to allow them free passage. If refused or threatened with violence, the non-striker may call on police protection to exercise his or her right to cross the picket line. The suggestion that a police presence often provokes violence is unacceptable.

In cases where pickets are numerous or where there are signs of violence, a non-striker may be justified in waiting a few days before venturing across the picket line. Action by strikers must be examined on a daily basis; they may be peaceful one day and violent the next.

However, it is not necessary for a worker to attempt to force his or her way through the picket line if the circumstances are such that personal injury or damage to his or her property can be reasonably expected to result from such an attempt. Failure on his or her part or on the part of the union to seek an injunction against picketing is inconclusive, particularly at the very beginning of the stoppage of work.

Among the many factors to consider are: whether the picketers were few in number; whether any attempt was actually made to cross the picket line; the sincerity of such efforts and if they were made by only a few or by a group of workers; whether non-strikers outnumbered strikers; whether the two groups belonged to affiliated unions; whether an effort was or should have been made to obtain the picketers' consent; whether the non-striker had no alternative but to fail to report for work; whether it was practical to seek an injunction or police protection; and, finally, whether the strikers were violent or made threats ^{Footnote 23} .

In all cases, a worker must prove by a preponderance of credible evidence that he or she entertained a legitimate fear of violence and that this very fear was the reason for his or her failure to cross the picket line. If the fear is legitimate, undue weight should not be given to the fact that a worker did not seek police protection, since protection cannot easily be afforded 24 hours a day.

8.6.8 Legitimate fear of violence

Fear is quite clearly a state of mind, something that differs as much from one person to another as temperament. It is one's appreciation of events married to a host of other factors. An individual, confronted with the obligation to cross a picket line, may fear immediate acts of violence or subsequent reprisals by those involved in the dispute.

There is no benchmark or absolute rule for determining whether an individual is justified in fearing violence. Fear alone, in this context, is not the determining factor; it becomes legitimate only when it is based on concrete elements and on facts which show that such constraints exist and that reasonable conclusions may be drawn from them. Unsupported assumptions or mere possibilities are not enough. Where no violence has occurred and where nothing suggests that strikers are determined to resort to force or violence, fear is regarded as being unjustified. But fear is legitimate where any attempt to cross a picket line would very likely have led to acts of violence or reprisals ^{Footnote 24} .

Indications that may support a legitimate fear of immediate violence are, of course, serious threats of violence. Disparity in number between non-strikers and strikers, the fact that they belong to rival unions or a show of force may also be indicative. Violence that occurred elsewhere or several years earlier does not alone make fear legitimate.

Fear of reprisals against one's person, family or property may also amount to a legitimate fear of violence. Reprisals here refer to those of a physically violent nature and do not include moral harassment such as being treated with contempt and called a scab. The fact that the place of employment may lend itself to reprisals, as in the case of a mental hospital or aboard a vessel, is not enough.

It should not be forgotten that the only possible way a worker may show that this refusal or failure to cross a picket line does not amount to a voluntary withdrawal of labour is by demonstrating that the fears are legitimate ^{Footnote 25} . Self-serving declarations of fear on behalf of an individual group of organized workers for the purpose of obtaining benefit must be carefully scrutinized. In principle, individuals can only testify as to their own fears. Those who speak on behalf of others should be asked to indicate their sources.

Here a study of the facts is fundamental. Care must be taken to weigh the credibility of the parties involved, without forgetting that more often than not a worker will exaggerate what has really happened, whereas the union involved will tend to minimize or deny the existence of threats or violence by strikers. The situation may also change from day to day. As often as not, the behaviour of picketers must be examined to see whether there are signs of hostility toward those who wish to report for work, and to what extent this animosity takes the form of threats, aggressiveness and violence. Violence is more likely to be present when the dispute is protracted or illegal, or following the suspension of union leaders, or if union recognition is at issue; the same is true when the employer resorts to strike breakers. Some trades and union locals may be known for their regular use of intimidation tactics.

News releases and newspaper articles may be useful in researching and evaluating the facts surrounding strikers' behaviour ^{Footnote 26} . A police report indicating that no troubles were reported is not necessarily conclusive because even unreported violence or threats must be taken into account.

Lastly it is not necessary that all members of the same grade or class feel this legitimate fear of violence. However, it must be felt and shown by the worker himself or herself that this fear is the reason that he or she has not attempted to cross the picket line.

8.6.9 Duration of participation

As we have already seen, participation may take various forms and may even occur during part of the period of the stoppage of work. This may be the case, for example, of a worker who is not a party to this dispute and does not have a direct interest and who honours a picket line for a short period of time or for only one day a week. Though such participation is only episodic, a worker involved is still a participant in the labour dispute for as long as it is not shown that he or she has not definitely stopped supporting the strikers ^{Footnote 27} .

It must be recalled that a person who is a party to the dispute generally cannot show that he or she is not a participant in the dispute ^{Footnote 28} , even if that was the only form of participation in the dispute, or the person proves that it was due to a legitimate fear of violence that he or she did not try to cross the picket lines. That person remains as a participant for however long he or she is a party to the dispute.

For as long as the claimant participates, the exempting conditions are not met. As for the period of non-participation, the disentitlement will not apply when the other exempting conditions are also met ^{Footnote 29} . The participation of workers of the same grade or class as the claimant is not an element to consider.

However, the above reasoning does not apply to a person who is laid off for participation, even though that worker may be prepared to report for work at a later date notwithstanding the picket line ^{Footnote 30} .