When an employer carries on business during a strike or lockout, one of the difficult questions has been the status of employees who cross the picket line to work during the labour dispute.  In a decision on July 22, 2015, Nanaimo Golf & Country Club BCLRB B140/2015, the British Columbia Labour Relations Board dealt with this situation.

The Nanaimo Golf & Country Club locked out its bargaining unit employees. The club continued to operate during the lockout.  In the course of negotiations, the employer proposed in collective bargaining that the union agree to the following understanding:

There will be no reprisals taken against any employees who crossed the picket line during the lockout; or

Employees who crossed the picket line during the lockout will not be required to belong to the Union as a condition of employment, but will pay Union dues.

Under the union’s constitution and bylaws, a member who crossed the picket line during a labour dispute could be subject to “charges”, which could result in the member being expelled from the union.  Union security clauses in collective agreements generally require that all employees will be members of the union.  Accordingly, if an employee who crossed the picket line during a labour dispute was expelled from the union, the employer would not be able to continue to employ that person.

In this case, the employer proposed that the union take no reprisals against such employees, or, alternatively, that employees who crossed the picket line would not be required to belong to the union as a condition of employment under the collective agreement.  The union complained to the Labour Relations Board that the bargaining proposal by the employer was a failure to bargain in good faith because it tried to restrict the union’s ability to apply its constitution and bylaws to its members.

The board confirmed that an employer is not permitted to take a matter to impasse in collective bargaining if it involves statutory rights, including the ability of the union to apply its own constitution and bylaws to its members.  In this case, however, the board concluded that the employer’s demand did not “unlawfully restrict the Union from applying or administering its Constitution and Bylaws.”  The union was free to administer its constitution and bylaws and free to expel members from the union.  The employer’s bargaining demand dealt only with the union security clause under the collective agreement.  This is a legitimate subject for negotiation, and not an unlawful attempt to restrict the union’s administration of its internal affairs.

The Labour Relations Board decided that if the employer had bargained to impasse on a bargaining proposal that would have interfered with the right of the union to apply its constitution and bylaws to its members, that would have been unlawful and a failure to bargain in good faith.  When the demand by the employer was restricted to the union security provisions of the collective agreement (without attempting to restrict the union’s right to apply its constitution and bylaws) it was a legitimate bargaining demand.

As a result, provided that the employer achieved the change that it demanded in the union security clause, the employees who crossed the picket line to work during the lockout would be able to remain as employees even if they were expelled from union membership.