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, that they are not participating in the labour dispute that caused the stoppage of work (Digest 8.1.4).

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 actual dispute that must be examined, which is not necessarily the same thing as participation in the stoppage of work (CUB 55320).

It is evident that individuals are participating in a dispute when they are parties to the dispute being negotiated 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 are participating in the dispute. The principle does not change, even if a person disagrees with the demands of the parties involved in the dispute, or who have a direct interest in it, or disagrees with the demands of the union which represents them.

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, to obey orders or to handle "hot" materials, failing to report for work, withdrawing services, walking out or leaving the job, and participating in or honouring a picket line.

These traditional forms of participation are 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 workers who are parties to the dispute and 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 (Digest 8.2.3).

Mere expressions of support for those involved in the labour dispute does not mean these persons are participating. What must be examined are the facts and the actions of each individual. A person would not be considered as participating in the dispute if they continued performing their own duties during the dispute, or even those usually carried out by workers involved 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 (CUB 67605 and CUB 39832A). The fact that an employee belongs to a union or another association, does not necessarily mean that the union has the authority to act in the member's name on all matters. It is the claimant's actions and position in relation to the dispute that determines their participation in it.

It has been held that employees belonging to a union involved in a dispute are participants if one or more of the following circumstances apply. 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, respect a picket line, or,
• join a picket line under orders from the union.

There are many examples of support being given voluntarily by an employee to the union. It does not need to be on a large scale; the simple fact of not expressing one's disagreement or dissociating oneself from their union's demands may amount to participation in the dispute (Digest 8.6.6  and Digest 8.6.7). The fact that a person is a party to the dispute is sufficient to conclude that they are participating (CUB 76451 and Digest 8.6.1).

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 another association, or open disapproval, does not change anything, unless the group as a whole 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 (CUB 21571 and CUB 20347). 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 they are nevertheless a party to the dispute (Digest 8.6.1).

8.6.3 Honouring the picket line

Setting up a picket line is certainly one of the most decisive actions 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 is no longer relevant when there is a total lock-out, because clearly no duties can be assigned to those who report for work. However, to those who are a party to the dispute, it demonstrates obvious proof of participation (FCA A-270-91, CUB 19037)).

Unionized workers traditionally honour picket lines as a form of trade union solidarity (CUB 63282 and CUB 48786). Honouring a picket line, whether by solidarity or out of adherence to union principles, or any refusal to cross a peaceful picket line, is considered participation. The fact that a clause in the collective agreement may stipulate 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, does not change this.

Thus, workers who refuse to cross a picket line and who fail to report for work are considered to be on the side of the strikers and supporting their demands (FCA A-269-91, CUB 19033). It would be contrary to the purpose of the statute to consider that they are still entitled to benefits. 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 with their employer (Digest 8.6.1).

Whether honouring the picket line stems from personal convictions or from someone else’s advice rather than from union policy, is irrelevant. Participation depends on whether a picket line was honoured and not whether there were good reasons for doing so. The issue is whether the refusal or failure to cross the picket line amounts to a voluntary withdrawal of labour (Digest 8.6.6 and Digest 8.6.7).

8.6.4 Lay-off or no work available

There may be situations where an employee who is laid off is told that their 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 is not sufficient to conclude that they are participating (FCA A-595-00 and CUB 45670A). This applies only to the extent that an authorized person notified the employee of the lay-off, cancellation of the recall to work, or equivalent instructions.

Similarly, a group of employees are not considered as participating in a dispute if there are definite signs that work would not have been available by reason of the strikers not being at work (CUB 76451 and CUB 56343). But if the employer does have work available, the question of how long this work will last is irrelevant, as long as there is some work. Statements made by an employer in a vague and general manner should be carefully clarified.

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 work against them.

An unsupported contention that work would not have been available for plasterers because of a labourers' strike was not accepted. However, 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 simply allege 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 (CUB 63282 and CUB 48786). Its purpose is to publicize the existence of a strike and to verbally persuade workers of the merits of the strikers' cause. Strikers may not deny access to anyone going to work, as every employee has the lawful and undeniable right to cross a picket line. Legal remedies exist to protect this right.

It is not sufficient to presume that there exists a risk of violence because of the presence of a picket line. Although the possibility of violence often exists, it cannot be assumed that an attempt by workers to cross the picket line will result in violence.

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 (CUB 63282 and CUB 48786). 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 (Digest 8.6.7).

Withdrawal of labour resulting from a refusal or failure to cross the picket line is presumed to be voluntary and in support of the strikers, and therefore amounts to participation. This presumption of fact is based on the following principle: when workers, or the union or 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 claimant’s union or association decides to honour the picket line, they are still free to act on their own judgment and consider whether they prefer to follow or to ignore the decision taken by the union or the association. This choice, one that workers must frequently make, is purely voluntary.

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, or the possibility of no longer being able to obtain work in the worker's trade (FCA A-373-82, CUB 7065 and FCA A-838-91, CUB 20202). These reasons do not change the voluntary nature of the withdrawal of labour.

8.6.7 Rebuttal of voluntary withdrawal

When a claimant does not cross a picket line, there is a strong presumption that this is at the request of members of the striking union to rally in their support and to 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 (FCA A-373-82, CUB 7065, FCA A-269-91, CUB 19033, FCA-879-82, CUB 79649 and FCA A-1036-92, CUB 21236).

If they really want to work, non-strikers or their union should take reasonable action to do so. What is reasonable 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 across the picket lines. If refused or threatened with violence, the non-striker may call on police protection to exercise their 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 their way through the picket line if the circumstances are such that personal injury or damage to their property can reasonably be expected to result from such an attempt.

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 police protection; or,
• whether the strikers were violent or made threats (Digest 8.6.8).

In all cases, a worker must prove by sufficient credible evidence that they considered a legitimate fear of violence and that this very fear was the reason for their 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 greatly from one person to another. It is one's appreciation of events, combined with several 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. 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 (CUB 63282 and CUB 48786).

Indications that may support a legitimate fear of immediate violence are, of course, serious threats of violence. An imbalance in numbers between non-strikers and strikers, the fact that they belong to rival unions, or a show of force may also be indicative of potential violence. 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 is not enough.

The only possible way a worker may show that their refusal or failure to cross a picket line does not amount to a voluntary withdrawal of labour is by demonstrating that their fears are legitimate (FCA A-373-82, CUB 7065 and FCA A-269-91, CUB 19033). Unsupported declarations of fear on behalf of an individual group of organized workers for the purpose of obtaining benefits 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.

A study of the facts is essential to review both sides of the dispute and determine if the threat of violence is legitimate. The situation may also change from day to day. 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 prolonged or illegal, 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 (Digest 8.1.10). 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 workers themselves that this fear is the reason they did not attempt 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 only part of the period of the stoppage of work. This may be the case, for example, if a worker who is not a party to the dispute and does not have a direct interest, honours a picket line for a short period of time or for even only one day a week. Though such participation is only sporadic, a worker involved is still a participant in the labour dispute for as long as they continue to support the strikers (CUB 15334).

For as long as the claimant participates, the exempting conditions are not met (Digest 8.6.1). As for the period of non-participation, the disentitlement will not apply when the other exempting conditions are also met (Digest 8.7.5 and Digest 8.8.11). 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 and has no direct interest in the labour dispute, even though that worker may be prepared to report for work at a later date, notwithstanding the picket line (Digest 8.6.4).

[April 2019]