How A Busy, Holiday Shift Can Be Framed as an Illegal Strike in Canada
Garda Security Screening and IAMAW (Sekhon), Re
Written on November 15, 2023.
Over the Thanksgiving holiday in 2011, Gurshawn Sekhon was working for Garda Security Screening as a bag screener in an Ontario airport, presumably Toronto-Pearson. He was alleged to have taken part in an unlawful work slowdown between October 5, 2011 and October 9, 2011. He was suspended on October 10, 2011 but not discharged officially until January 11th, 2012. It is important to note that Gurshawn was also a member of his union’s executive, the Canadian Airport Workers Union (CAWU), but, according to the employer, this position had no impact on him being relieved of his duties. On October 5th and again on October 7th, the Employer petitioned to the Canadian Industrial Relations Board (CIRB) for the work slowdown to be declared an unlawful strike action. The CIRB did rule that the employees actions, in totality, were unlawful. Seventy other Garda Security Employees were also fired as a result of this ‘unlawful strike action’. The question that must be answered in this situation is not whether the employees as a whole did in fact commit a violation of the law by participating in an illegal strike, but whether the Grievor themsleves participated in the actions.
The Employer alleged that the grievor, like many other employees, did not perform his job as usual, therefore de facto engaged in an unlawful strike action. It is important to note that in the time between the Grievor’s dismissal and the time that the arbitration case took place, a new union, the International Association of Machinists (IAMAW), was now representing the workers, and the Grievor was no longer a member of the executive. The new union, IAMAW, did not dispute that an unlawful strike took place. According to evidence given to the the arbitrator, the Employer, during the days of the ‘unlawful strike action’ “removed from duty those whom it saw blatantly engaging in unlawful strike activity. The Grievor was not one of those Employees.” When the ‘strike’ ended, the Employer went over the video evidence and suspended Sekhon the following day.
The Grievor denied participating in an unlawful strike or work slowdown and testified that he was working in a normal fashion. The security line he was working on was moving slower than normal, but he attributed that to the holiday rush and insufficient staffing. When asked if there was an unlawful strike, Sekhon stated that he would “probably agree only because of the decisions made by the CIRB”. The mediator states however that the Grievor “never acknowledged that an unlawful strike had taken place”.
The Employer argued that video evidence demonstrated that the Employee was not performing his duties in a normal manner. Garda suggested that the differences between performing the x-ray position normally and performing the way as was done by the Grievor might only show a subtle difference. However, the totality of the Grievor’s actions were a clear indication of his engaging in an unlawful strike.
The Union argued that the grievance should be upheld on the basis of undue delay in providing cause for suspension and termination. The Union also argued that the delay between suspension and termination was also prejudicial. They said that “the lack of particulars and the delay prejudiced the Grievor in that he was unable to explain his actions in general and in particular, why he ordered searches of specific bags.” One important argument that the Union makes on behalf of the Grievor is that despite appearing to be working slower than ‘normal’ the Grievor was working on a “100% Search Line” in which, “when a bag has been identified for search, it needs to be searched in a different, more thorough manner.”
The Arbitrator, M. Brian Keller, found that the Grievor did his job “in a slower than normal manner’ and that in comparing the Greivor’s line with an adjacent line, it became even more clear. However, the Arbitrator acknowledges repeatedly throughout the decision that there is a substantial difference between the adjacent ‘normal’ x-ray line and Sekhon’s ‘100% Search Line’, and even references how subtle the differences were between the lines. Combined with the Grievor’s own admittance that the line was running slower than normal due to low staffing and the holiday weekend, the Arbitrator still determines that the Grievor was participating in an unlawful strike action.
Secondly, the Arbitator found that the delay between suspension and termination was in fact not prejudicial as the previous Collective Agreement between Garda and the CAWU did not have a time limit to impose discipline. The Arbitrator made the assessment that because there was 1,400 employees in the bargaining unit with over 400 on shift at any one time, it was reasonable for the Employer to take three months to review all of the video.
Eventually, the grievance was dismissed on both counts as the Arbitrator found that based on video evidence alone, Sekhon did participate in a work slowdown, and that the time between suspension and dismissal were reasonable. I have a very hard time believing that this was the right decision to make as some of the Arbitrator’s own statements in the ruling contradict his final decision. It is also important to note that during my research into this case, I found that almost immediately after the Grievor’s dismissal, the CAWU was raided by IAMAW. The Greivor was also sued by members of his union earlier in the year in Ali v. Datta, 2011 ONSC 2496 for not having internal union elections as outlined in CAWU’s constitution. In that case the Ontario Superior Court ruled that the union must have elections within 90 days. The election appeared to have taken place with Sekhon retaining his position as treasurer before being suspended and dismissed later in the year on some very questionable evidence. The likelihood of mere coincidences as laid out in the timeline provided below is possible, but in my opinion, very unlikely.
- As an executive member of CAWU, Sekhon is sued.
- He retains his position, and is not one of the workers initially fired by Garda during the strike.
- The day after the strike ends, he is suspended.
- Less than a month later, CAWU decertifies and recertifies with IAMAW.
- Sekhon is then fired.
- IAMAW does not challenge the CIRB on the grounds that an illegal strike has taken place. Letting Sekhon and 70 others lose their jobs.
- Sekhon loses his grievance and IAMAW, to this day, is still the union representing Toronto Airport Screeners.
I initially chose this case because I had previously worked for Garda, not as a airport screener but as a traditional security guard. I wanted to see what exactly the Ontario Labour Board and in turn the CIRB found to be enough evidence of an ‘unlawful strike action’. It concerns me that this case has been cited multiple times as a reference for what can be determined to be an unlawful strike because I believe that the Arbitrator in this decision made a personal, bad-faith, judgement rather than a correct, lawful one. To quote from the decision one final time to make my point clear, the Arbitrator says, “The video [evidence] does not show the Grievor sitting with his arms crossed, doing nothing. It is much more subtle than that. It shows the Grievor leaving his position when there is no apparent reason for him to have to do so. It shows him not assisting in searches when he could have helped out. It shows him holding bags in the x-ray machine when there was no reason to do so. It shows him requiring searches of bags where nothing was found on multiple occasions.” This is pure conjecture. There is no way for the Arbitrator to “know” any of this as fact. The Arbitrator stated previously that, for the line to be slowed all a screener has to do is, “take an extra few seconds with each bag or require the search of a few extra bags when no search was required normally”. The Arbitrator seems to be implying that safety on airlines is less important than getting through security quickly and more devestatingly, that a mere seconds delay or going the extra step to ensure passenger safety could be misinterpreted by the Employer or an Arbitrator as meeting the bar for to be an unlawful work stoppage and an illegal strike. This is propostorus and sets a terrible precedent for Employees working in a security role anywhere.
Case Referenced
Garda Security Screening (2013), 230 L.A.C. (4th) 69 (Keller) § 9:17. Liability for an Unlawful Strike — Employees Canadian Labour Arbitration, 5th Edition § 9:17. https://nextcanada-westlaw-com.uml.idm.oclc.org/Document/Id587ad3a60d12424e0440021280d79ee/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
Other Secondary References
Morland, Ian. “To All Garda Employees.” Toronto Screeners, September 29, 2011. http://screeners.iamaw.ca/?p=168.
Ali v. Datta, 2011 ONSC 2496. https://www.canlii.org/en/on/onsc/doc/2011/2011onsc2496/2011onsc2496.html?searchUrlHash=AAAAAQAgR2FyZGEgU2VjdXJpdHkgU2NyZWVuaW5nICBTZWtob24AAAAAAQ&resultIndex=1
