UPCE Picket Lines and the Right of Refusal

As a result of a collective bargaining impasse, the UPCE (Union of Postal Communications Workers) has issued a seventy-two (72) hour strike notice to Canada Post. The UPCE will be in a legal position to strike as of Monday, November 17, 2008.

Two of the principal items in dispute involve job security and sick leave. Canada Post has refused to provide all of its current employees with job security, which would allow for layoffs without surplus protection. Canada Post has also insisted on a new sick leave scheme, the Short Term Disability plan, which would pool family leave (currently five (5) days per year) with sick leave (currently fifteen (15) days per year) and reduce the combined entitlement to seven (7) days per year. CPC’s proposed scheme would put the approval of Short Term Disability leave in the hands of Manulife, without any recourse to the grievance procedure. For years, Canada Post has encouraged its UPCE members to save their sick leave for the future only to now attempt to implement a system which would remove or restrict access to those accrued credits. These two issues alone have led to the strongest UPCE strike mandate in its history (88% in favour of a strike).

Should a strike occur, it is likely that CUPW members will at some point come into direct contact with striking UPCE members. In the past, Canada Post supervisors have pressured Mail Service Couriers and Letter Carriers into driving corporate vehicles through picket lines under threat of discipline. Should UPCE go on strike, it is quite possible that this could again be the case; MSCs and Letter Carriers may be instructed to drive through picket lines while striking UPCE members stand in very close proximity to their vehicles.

CUPW members cannot be compelled, even under threat of discipline, to put into jeopardy the health and safety of other employees.

Article 33.13 of the Collective Agreement stipulates that an employee has the right to refuse to do particular work if he or she has reasonable grounds to believe that the performance of this work will endanger his or her health, safety or physical well-being, or may similarly endanger another employee.

Similarly, Section 128 of the Canada Labour Code stipulates that an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that: (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee; (b) a condition exists in the place that constitutes a danger to the employee; or (c) the performance of the activity constitutes a danger to the employee or to another employee.

Employees cannot be disciplined for invoking their rights pursuant to the Collective Agreement or Canada Labour Code unless it can be established that an employee has sought, for frivolous reasons, to dishonestly take advantage of those rights.

In a dispute that went before the Canadian Labour Relations Board (now the Canadian Industrial Relations Board) three (3) Vancouver MSCs were suspended by Canada Post after refusing to drive through a PSAC picket line. All three of the MSCs exercised their rights under the Code because picketers were in close proximity to the front of their vehicles. In response, Canada Post immediately suspended each driver.

In ruling in favour of the Union, the Board held that Canada Post failed to comply with its obligations under the Code:

CPC did not fulfill its obligation as an employer under section 128 (7). It did not carry out an investigation into the circumstances surrounding the refusals with a view to eliminating or reducing any existing danger. What it did was to short-circuit the whole system by immediately disciplining the refusing employees. This is exactly the type of mischief that section 147 of the code is designed to prevent. When an employer acts like CPC has here, the Board can only presume that the disciplinary measures were taken because the employees acted in accordance with the Code

As reinforced by the above CIRB ruling, employees may not be disciplined for legitimately exercising their rights. Accordingly, the Union will provide full representation to any CUPW member who is suspended or disciplined for legitimately exercising his or her rights, up to and including arbitration.

In solidarity,

Ken Mooney
Grievance Officer
CUPW Pacific Region