9/25/2023 0 Comments Lawful strike definitionThe mere presence of an affiliate's representative at bargaining sessions where local union officials indicate that a strike vote will be taken by the local membership is not sufficient to impose liability on the affiliate.However, evidence of the representative's picketing during the strike may be sufficient. An affiliated organization's representative on an informational picket line during non-work hours is alone insufficient evidence to warrant a conclusion that the affiliated organization was condoning or encouraging a subsequent strike.In considering such cases, the CERB has held: If an employer alleges that a union's parent or affiliate organization has also violated Section 9A(a), it must introduce sufficient facts to establish such involvement. Information regarding the work action on the union’s website, including announcements or steps taken by the union’s executive board regarding an upcoming strike vote. Picketing by union officials during work hours.Union officials’ remarks indicating the existence of a strike vote by union members.The failure of union officers to report to work.Section 9A(a) also prohibits public employees or employee organizations from inducing, encouraging, or condoning a strike. Inducement, Encouragement, and Condonation The timing of absenteeism coincides with expressed labor relations frustration.ī.The similarity of employee absence excuses.An abnormally high rate of absenteeism.Other facts that may lead to an inference of a strike include: The fact that employees picketed outside their place of employment during work hours.The absence without excuse of virtually 100% of the employees in the context of a dispute over a collective bargaining agreement and.Factors the CERB has considered in finding a strike include: Where there is no direct evidence of a strike, the CERB may make its findings based upon the available facts and the reasonable inferences drawn from them. Where the activity alleged by the employer to violate the Law consists of a reduction in employee productivity, the CERB does not necessarily infer from statistical data that employees are unlawfully withholding services, even if coupled with evidence that the employees were dissatisfied with the progress of negotiations.Where the employer has failed to consistently enforce a written requirement that employees perform a certain task or the manner in which they perform it, the failure to perform the task does not constitute unlawful withholding of services.The expiration of a collective bargaining agreement specifying the reporting date for schoolteachers does not eliminate the teachers’ obligation to report to work on the first scheduled day of the school year.An employee's failure or refusal to maintain a current professional certification required to perform employment duties may be a strike or unlawful withholding services.A concerted refusal to perform a task that is purely voluntary or within employees’ discretion is not a strike.The refusal to work overtime is not a strike where an existing collective bargaining agreement or past practice specifically authorizes the refusal.The CERB has also held the following regarding conditions of employment:
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