By Lana Payne, Unifor Atlantic Regional Director
For more than 470 days, workers at the DJ Composites aerospace facility in Gander, Newfoundland and Labrador, members of Unifor local 597, have been locked out by their American-based employer.
These workers earn modest wages, by any standard and certainly by aerospace industry standards.
They have played by the rules. Their employer is another story and yet, it is ineffective labour laws that allow their employer to get away with bargaining in bad faith. And just as importantly, it is a refusal by the government to fix the broken system of labour relations in Newfoundland and Labrador. Here is the story of this egregious lockout.
In 2012, when a U.S. company purchased their workplace, Unifor Local 597 members agreed in good faith and with a boatload of goodwill to work with their new employer to build the company. They agreed to take concessions to help their employer in exchange for promises of stable employment. As days turned into months and months into years, those broken promises became the first sign that this employer had other ideas. Ideas shaped in the right-to-work state of Kansas.
Like most workers who join a union in Canada, the DJ employees did so to bring democracy to their workplace, to have a tool to improve their working conditions and living standards by participating in collective bargaining with their employer.
The right to a union and to fair collective bargaining is a constitutional right. These rights are supported through most often provincial legislation which outlines the rules for collective bargaining and what constitutes fair and balanced labour relations.
In order for the labour relations system to work as it should, the workplace parties, the employer and the union, must come to the table to operate in good faith. It is a system built on mutual trust and an acceptance by employers that workers are entitled to a union to negotiate their working conditions. The system and rules are designed to provide balance between the workplace parties.
The law even says the parties must make all reasonable efforts to reach a collective agreement.
But sometimes actions taken by one of the parties can throw the balance out the window. That’s when the system no longer works. In those cases, there must be provisions to restore balance.
In the case of this 15-month lockout, the balance shifted when the employer broke the law. It was found guilty of bargaining in bad faith in May of 2017 by the Newfoundland and Labrador Labour Relations Board. The Board ordered the employer to remove egregious proposals designed to eliminate seniority provisions. The Board also ordered the employer to make a new offer to the union.
It is a shocking weakness in the rules governing fair collective bargaining.
The new offer from the employer was packaged differently, but basically attempted to achieve what the previous proposals had been designed to do – eliminate seniority, gut wages and divide the workplace.
The union representing these workers, Unifor, has made every effort to get a fair contract, including pressuring Newfoundland and Labrador Labour Minister Al Hawkins to appoint a special mediator to help resolve the dispute.
The mediator was unable to get the employer to budge from their position.
What is missing in the legislation is a hammer. A hammer that would restore balance when employers behave the way this one has, breaking the law, yet facing no real consequences or repercussions for having done so.
Following mediation in the fall of 2017, Unifor again attempted to propose a solution to the employer that included recommendations made by the mediator.
The union did not receive a response from the employer in the reasonable timeframe requested and filed a second complaint with the Labour Relations Board.
In early February 2018, the Board ruled for a second time that the employer had been guilty of violating the Labour Relations Act.
To date there are no repercussions for this second breach of the law. The union and the workers await the Labour Relations Board’s written reasons. In its complaint to the Labour Relations Board, Unifor proposed that the remedy should be to send the unresolved matters to an arbitrator for settlement.
Let’s talk about balance.
The Minister of Labour has said that he must remain neutral in this dispute.
Indeed, the minister should as long as everyone is following the rules. That is not the case with the D-J Composites lockout.
Once one party stops following the rules and is found guilty of bargaining in bad faith and of violating the province’s labour laws, to continue to do nothing is not a neutral position. It means you have now taken a side. Where is the balance in that?
The employer has been found guilty of breaking Newfoundland and Labrador labour laws twice.
The employer has faced no repercussions. Where is the balance?
The workers have been locked out for 470 days as of April. The employer continues to hire new employees while stating at the bargaining table that it wants to layoff 8 of the 32 bargaining unit members currently locked out.
Some 20 non-union staff cross the picket line every day to work in the facility.
In Newfoundland and Labrador it is legal for an employer to hire as many replacement workers as it wishes while locking out its union employees. This is the case with DJ Composites. How is that balanced?
But there are no provisions in the Labour Relations Act to deal with employers who refuse to bargain fairly and who clearly want to bust unions.
If union members were found guilty of impeding these replacement workers from crossing their line, there would be repercussions, for them and for their union, potentially including charges and fines. Where is the balance?
This needs to be addressed. Currently, the law requires the agreement from both parties to send unresolved matters to a third party arbitrator. This merely allows a bad-behaving employer who has been getting away with breaking the law to continue with the bad behavior. Indeed to be rewarded for it.
Proposals to deal with circumstances where there has been a complete breakdown in collective bargaining were made by the Industrial Inquiry Commission into the 18-month Voisey’s Bay dispute of 2009-2010.
The Inquiry noted: “There are circumstances where the collective bargaining process is not working. The Commission believes that, where the collective bargaining process has failed to produce a collective agreement despite the use of the strike or lockout, the public interest may require that a collective agreement be imposed.”
In the case of D-J Composites, the public interest is in restoring confidence in a balanced labour relations system that supports the rights of workers who have joined unions.
The Industrial Inquiry Commission recommended that in a case like DJ where collective bargaining has failed and such a finding has been found by the Labour Board then one of the workplace parties should be able to apply to have unresolved matters determined by a 3rd party arbitrator. Unfortunately in 2010, the government caved to intense pressure from employers who opposed the sensible labour law change.
You can’t bust unions when there are consequences for attempting to do so.
This is recognized in labour law covering first collective agreements which provides for an alternative dispute-settling mechanism where employers are found to be frustrating efforts to reach a collective agreement in a veiled attempt to get rid of the union.
It’s time to plug the holes in Newfoundland and Labrador’s labour laws so there is real balance in the system and so workers’ right to a union and fair collective bargaining are respected and supported.
It’s time for the Newfoundland and Labrador government to act to fix our labour laws. Anything less means the government has chosen a side: the side of the American employer who denied Unifor members their rights.
When questioned about the lockout and the actions of the American company, recently in the Legislature by NDP MLA Gerry Rogers, the minister refused to comment on how impossible it can be to reach a negotiated settlement when one side breaks the law and when their goal is to bust the union.
The minister noted that a negotiated settlement was the best outcome. Of course it is. We would agree. But in rare cases like this one, a negotiated settlement is not possible, and when it isn’t there ought to be a way to have a dispute resolved. When one side has broken the law, not once but twice, there ought to be real consequences.
Working people expect more from their government than inaction and sympathies. We need labour laws with teeth. The workers of this province need labour laws that enforce and protect their rights, rather than loopholes that allow employers like DJ Composites to get away with union busting.