Unfinished business: banning replacement workers in New Brunswick

Replacement workers? Strikebreakers? Scabs? Call them what you will, bringing in replacement workers during a strike is one of the sorriest spectacles in labour history.

The decision by Fredericton City Council to recruit replacement workers during a strike and lockout by CUPE 508 outside workers does not fit well with the city’s advertised image as a “progressive” and “organic” community that values all citizens and what they contribute to the life of the city. This sad situation is also a reminder of the time 25 years ago when a ban on strikebreakers was actively debated in the New Brunswick legislature.

In labour relations, the use of replacement workers is rarely part of the solution. They deepen the divide between workers and employers by depriving workers of their strongest sanction, the ability to withdraw labour and stop work.

Using replacement workers often leads to increased conflict, even violence, on picketlines. Disputes are prolonged, the public is dismayed, and the whole experience can leave resentments that last long after a formal settlement is reached . . . if there is a settlement.

Strikebreakers and security forces can easily be a recipe for violent confrontation. We can see this happening in a classic dispute in Saint John in 1914, when the street railway company tried to break a strike (in this case a strike for union recognition) by bringing in strikebreakers and private police from Montreal. When the company tried to resume operations, thousands of people turned out to support the workers. Streetcars were stopped in their tracks, and a detachment of the Royal Canadian Dragoons charged down King Street into the crowds. When crowds attacked the company barns, gunshots were fired by the private detectives inside.

Fortunately, nobody was seriously injured, and the strike was eventually settled through the intervention of the mayor. But this kind of “collective bargaining by riot” showed the need for better ways of managing labour relations.

It took a long time, but the rising tide of union organizing, especially in the 1930s and 1940s, convinced political leaders in New Brunswick, as elsewhere in Canada, that establishing a formal labour relations system was the best way to promote stability and security in the workplace.

Ideas about positive labour relations were written into the original Labour Relations Act in 1945, which is sometimes seen as part of the plan for postwar reconstruction and progress in New Brunswick. Employers were required to recognize and deal with unions chosen by the majority of their employees. Both sides were expected to “negotiate in good faith” and “make every reasonable effort” to reach settlements.

Meanwhile, a Department of Labour was created to provide assistance, and a quasi-judicial Labour Relations Board was mandated to adjudicate the law. The quid pro quo on the part of the unions was that officers were expected to ensure that there were no disruptions of work during the life of a collective agreement. Strikes were a last resort and legal strikes could take place only after all other efforts had failed.

When the next wave of labour organizing arrived in the 1960s, the Public Service Labour Relations Act, brought in by Premier Louis J. Robichaud in 1968 to apply to provincial employees, went so far as to state that “the employer shall not replace the striking employees or fill their position with any other employee.” As far as Robichaud and the unions were concerned, this meant no strikebreaking.

By the early 1990s there was hope that New Brunswick would follow Quebec, Ontario and British Columbia by enacting a law to ban the use of all replacement workers in strikes in the province.

Anti-scab legislation had long been part of the labour agenda, and at the opening of the legislature in 1988, the Minister of Labour was presented with a petition of 10,000 names calling for similar measures in New Brunswick. Some union leaders even believed, very briefly, that the new premier, Frank McKenna, favoured the idea.

Several long-running disputes highlighted the problem. This included long strikes at Brunswick Bottling, the distributors for Coca-Cola products in the province, and at Dairytown Products in Sussex. In both cases, employers set aside their obligation to negotiate, and union workers were replaced so that production could continue. At Brunswick Bottling, the threat of an international boycott produced a settlement, but other workers were less fortunate.

The worst offender was the Irving oil refinery, where the company pursued a strategy of dividing workers against each other and continuing operations during the course of a two-year strike. The labour board ruled that the company was negotiating “in bad faith,” but by the end of the day Irving Oil had won the dubious distinction of being the only non-unionized oil refinery in Canada.

In this context, a bill was introduced in the legislature in 1995 to amend the Industrial Relations Act to prohibit the use of replacement workers during strikes in the province. To the surprise of many pundits, it passed first reading. This was a notable achievement for Elizabeth Weir, the provincial leader of the New Democratic Party, still in her first term as the member for Saint John South.

Bill 21 went to the Law Amendments Committee for closer consideration, and public hearings were held. One union brief pointed out that since 1980 replacement workers had been used in 25 labour disputes in the province. Another submission argued that prohibiting replacement workers would go a long way to promoting constructive labour relations in the province. But when the legislature was adjourned for an election that year, discussion was suspended.

Since then, Supreme Court decisions in 2007 and 2015 have confirmed that union rights, including collective bargaining and the right to strike, are protected by the Canadian Charter of Rights and Freedoms. In an important observation, the Court noted that union rights are “the culmination of an historical movement” and have become “a fundamental aspect of Canadian society.”

This is so because workers have fought for and defended those rights over a long history of social reform in this country. New Brunswickers have played their part in creating the modern industrial relations system, but the prohibition of replacement workers is still unfinished business.

David Frank is a professor emeritus in Canadian history at the University of New Brunswick. His publications include Provincial Solidarities: A History of the New Brunswick Federation of Labour.