Employer Wins Unlawful Strike Declaration Over Picket Line Refusal

Reasons for decision [COMPANY], applicant, and [NAME] ([NAME].), respondent . Board File: 039346-C Neutral Citation: 2026 [NAME] 1237 April 1, 2026 The panel of the [NAME] (the Board) was composed of [NAME], Vice-Chairperson, sitting alone pursuant to section 14(3) of the Canada [NAME] (the Code ) . A hearing was held on November 27, 2025. Counsel of [NAME], for [COMPANY]; [NAME], for [NAME] ([NAME].).

I. Nature of the Application [ 1 ] On November 27, 2025, [COMPANY] ([NAME], the applicant or the employer) filed an application under sections 23(1), 23.1 and 91 of Part I (Industrial Relations) of the Code , seeking a declaration that [NAME] ([NAME].) (the union) and its members were engaging in an unlawful strike when they refused to cross a picket line established by members of the union working for another employer, [COMPANY]. ([NAME]). [ 2 ] In the application, the employer sought the following remedies: a. A declaration pursuant to 91 of the Code that the refusal of the employees of the Applicant who are members of the Respondent to cross a picket line set up by [[NAME] employees] and provide the services they normally provide is a violation of section 88.1 and 89 of the Code . b. An order pursuant to section 91 of the Code requiring the Respondent and its members to comply with and refrain from contravening the requirements of section 88.1 and 89 of the Code . c. An order pursuant to section 91 of the Code prohibiting the Applicant’s employees who are members of the Respondent from engaging in such illegal strikes and directing them forthwith to work as directed by the Applicant. d. An Order pursuant to section 91 of the Code that the Respondent publish notices revoking these concerted refusals to work and give direction to all of their members, forthwith, to cease their concerted activities and return to performance of their duties as directed by the Applicant; e. An Order pursuant to section 91 of the Code that the Respondent, through their business agents, forthwith give notice of this Order to each and every employee who is a member of the Respondent, who is involved in the concerted work refusals. [ 3 ] [NAME] also requested, pursuant to section 23(1) of the Code , that the Board file its order in court. It referred to section 23.1 of the Code in its application and generally indicated that it requested the Board to “file its order in court,” without specifying which court. As such, the Board considers the requested remedy to be made under both sections of the Code . [ 4 ] The Board held a virtual hearing in these matters on November 27, 2025, the same day the application was filed. At the hearing, the employer called one witness: [NAME]. The union also called one witness: [NAME] of the union. [ 5 ] Prior to the commencement of the hearing, the parties held a case management conference (CMC) that concluded at 1:40 p.m. Pacific Standard Time (PST). The hearing began at 2:00 p.m. PST, approximately four hours prior to the start of the evening shift at [NAME]’s operations that are the subject of this application. [ 6 ] Shortly after the completion of the hearing, the Board issued Board order no. 1744-NB, declaring that an illegal strike had occurred, with reasons to follow. These are those reasons.

II. Background and Facts [ 7 ] [NAME] operates a marine transloading terminal in Prince Rupert, [NAME], handling dry bulk products such as coal and petroleum coke, as well as liquefied propane (LPG) shipments, since 2019. Approximately 120 employees at [NAME] are represented by the union under a collective bargaining agreement (CBA) expiring May 26, 2026. [NAME], a customer of [NAME], operates a propane export terminal adjacent to [NAME]’s facilities. [NAME] employees are represented by the union under a separate CBA also bearing [NAME]. Both locals share the same [NAME], who is also a [NAME] employee. The parties refer to the [NAME] bargaining unit as [NAME] and the [NAME] bargaining unit as [NAME]. [ 8 ] [NAME]’s operations require continuous staffing to meet minimum staffing requirements outlined in the CBA. These operations include safety-sensitive tasks such as railcar handling, vessel loading and coordinating LPG shipments for [NAME]. [NAME] employees regularly access [NAME] facilities to perform rail services under contractual obligations. [ 9 ] On August 19, 2025, [NAME] served a 72-hour strike notice on [NAME], but the right to strike was temporarily suspended until the Board dealt with a referral from the Minister of [NAME] to determine whether any services had to be maintained in the event of a strike or lockout. [NAME] notified [NAME] on August 22, 2025, that any refusal by its members to cross a picket line would constitute an unlawful work stoppage. The Board issued its decision on November 17, 2025 ( [COMPANY]. , 2025 [NAME] 1210). Despite mediation efforts between [NAME] and [NAME], the latter renewed its strike notice on November 24, 2025, and began picketing at the Prince Rupert Port Authority main gate on November 27, 2025, at approximately 6:00 a.m. [ 10 ] The main gate is used by employees of both [NAME] and [NAME] to access their respective workplaces. [ 11 ] [NAME] had scheduled 34 bargaining unit employees for the November 27, 2025 day shift to begin at 6:00 a.m. and 15 bargaining unit employees for the night shift on the same day, which was to begin at 6:00 p.m. No bargaining unit employees reported for duty at the start of the day shift, and most did not call in. As a result, [NAME]’s operations shut down. [ 12 ] The CBA between the parties prohibits strikes, work stoppages and sympathy actions during its term. However, it also recognizes individual employees’ rights to refuse to cross a legal picket line, consistent with [NAME] relations customs in the province of [NAME] and its [NAME] code. That clause reads as follows: Article 3.02 Recognition of Picket Lines The Company recognizes the right of the individual Union members to refuse, as a matter of conscience, to cross a legal picket line of any union engaged in a strike or lockout. The Company will not discipline any Employee for failing to cross a legal picket line. Any Employee failing to report to work as a result of his/her refusal to cross a legal picket line shall be considered to be absent without pay. In such circumstances, the Employee may choose to use banked hours or any earned, but unused, vacation entitlement to cover the loss of his/her wages. [ 13 ] Although the union admits that the requirements of section 89(1) of the Code have not been met, it relies on the above article in support of its claim that no illegal strike has occurred. [ 14 ] On November 26, 2025, the evening before the strike, [NAME] called a meeting at 7:30 p.m. at the union hall. The purpose of the meeting, according to his testimony, was to update members of Locals 523A and 523B on planned picketing that was to take place in support of the [NAME] legal strike. He told members that there would be a picket line set up by [NAME] striking workers at the main gate the following morning and that, in accordance with article 3.02 of the [NAME], crossing that [NAME] picket line would be a personal choice for [NAME] members of the union. He admitted in cross-examination that the union sent a bulletin to [NAME] bargaining unit members at the end of summer 2025 but that he could not specifically recall its content, other than the fact that it outlined basic rights that union members had. The bulletin in [NAME] was not submitted into evidence by either party. [ 15 ] When questioned about whether any members had asked for advice on how to respond to an employer’s inquiry as to why they did not show up for work (if that were to be the case), [NAME] could not specifically recall. He did, however, recall telling members to say that they were on a leave of absence without pay. He mentioned that the [NAME] picket line began to be established at approximately 5:15 a.m. on November 27, 2025, and was fully established by 6:00 a.m. He admitted in cross-examination that normally most members of [NAME] arrive at work somewhere between 5:30 a.m. and 5:40 a.m. to be ready for their morning shifts that start at 6:00 a.m. He stated that he did not tell anyone not to cross the picket line, but he also did not tell anyone that they had a duty to cross and attend work. [ 16 ] [NAME] testified that on the morning of November 27, 2025, none of the employees who were scheduled for work showed up for their 6:00 a.m. shift. Of the approximately 40 employees scheduled for work that morning, two called in sick: one warehouse employee and one operations employee. [NAME] and [NAME], Safety Manager, began calling employees to check in on them and determine their reasons for being absent. Apart from the two employees who called in sick, the remainder of the employees reached by phone generally referred to either one or both of the picket lines and the existence of article 3.02 of the CBA as their reasons for not coming to work. No employee specifically invoked freedom of conscience. [ 17 ] As per the usual protocol when dealing with absences, [NAME] and [NAME] began to call the short-notice call-out list to confirm if they could operate by calling employees for overtime work. Of the 28 employees called, only one accepted to work overtime but left the workplace at approximately 10:00 a.m.

III. Positions of the Parties A. The Employer’s Position [ 18 ] [NAME] asserts that [NAME] members are not in a legal strike position and that they engaged in a concerted refusal to work, in violation of sections 88.1 and 89 of the Code . It seeks a declaration from the Board that the work stoppage is unlawful, an order directing employees to resume work immediately and instructions for the union to communicate compliance to its members. [NAME] also requests that the Board’s order be filed in court for enforcement if necessary. [ 19 ] Counsel for [NAME] points to the CBA’s provisions prohibiting strikes and sympathetic strikes. Counsel argues that article 3.02 of the CBA relied on by the union is not binding on the Board, as held consistently in its case law, but also disputes the union’s stated interpretation of its meaning to distinguish it from similar clauses that the Board has previously considered. [ 20 ] [NAME] submits that the Board’s position regarding the refusal to cross picket lines, even in the face of the language in article 3.02 of the CBA and the [NAME] relations context (where refusing to cross a picket line based on such language has been held provincially to not constitute an illegal strike), has remained unchanged. [NAME] submits that reliance on the freedom of expression and association protected under the Canadian Charter of Rights and Freedoms (the Charter ) has been rejected most recently by the Board in [NAME] , 2023 [NAME] 1094 ( [NAME] ). [ 21 ] [NAME] submits that in the instant case, the Board only needs to determine if a cessation of work by all employees was an orchestrated event or based on a common understanding. It submits that motive is irrelevant. The fact that the union held a meeting the night before to inform bargaining unit members of the [NAME] strike and picket line, the failure of any scheduled employees to show up for work the next morning and the reasons given to the employer are, it argues, objective evidence of the application of a common understanding resulting in an orchestrated event. [ 22 ] [NAME] submits that constitutionally protected rights are only relevant in relation to legal strikes, not illegal ones; the same argument is applicable for freedom of conscience. Notwithstanding its argument that motive is irrelevant, including freedom of conscience, the employer highlights the fact that there was no evidence of any individual employee invoking freedom of conscience as a reason for not attending work on November 27, 2025. [ 23 ] Among the authorities cited by [NAME] in support of its arguments, counsel also directs the Board’s attention to the following: Air Canada (1984), 59 di 67; and 8 CLRBR (NS) 397 (CLRB no. 490); Canadian Broadcasting Corporation , 1999 [NAME] 11; and [NAME], Local 333 v. [COMPANY] , 2009 FCA 201 ( [NAME] ). [ 24 ] Finally, the employer states that all elements for issuing an order pursuant to section 19.1 of the Code have been met. If the Board could not issue a final order, [NAME] asks it to issue one on an interim basis. It also asks that the Board file any order in court for enforcement purposes. B. The Union’s Position [ 25 ] The union denies that a strike has occurred. It claims that its members had a right to take leave in accordance with article 3.02 of the CBA, which accords a special status and remuneration scheme to employees who do not cross a picket line. For example, members can use vacation time or banked time off in lieu of overtime pay. This status, in the language of article 3.02, distinguishes it from other CBA language deemed non-binding by the Board in previous decisions like [NAME] . [ 26 ] The union submits that it is not a strike when employees access leave provisions or decide to be off on holiday. The union claims that by accessing negotiated leave, members have not engaged in a refusal to work. [ 27 ] The union concedes that a party cannot contract out of the Code ’s obligations but argues that the language of article 3.02 should be considered as a clause granting a right to take leave, rather than one that simply allows for the refusal to cross a picket line. [ 28 ] The union also pleads that this case, and the application of article 3.02 of the CBA, should be interpreted in the context of Charter values. It cites the following three cases in support of its argument: [NAME] v. [NAME] , 2012 SCC 12 ( [NAME] ); [COMPANY] v. [COMPANY] , 2018 SCC 32; and [NAME], an [NAME] , 2019 [NAME] 898. [ 29 ] In addition to freedom of association and expression, the union pleads that the Board should consider an additional Charter value that the union claims the Board has not examined, namely that of freedom of conscience. [ 30 ] The union submits that the function of applying those Charter values is to allow for the Board to interpret the definition of “strike” in the Code , such that the choices made by union members on November 27, 2025, do not constitute a strike. But if those choices do constitute a strike, the union submits that the Board should also apply the Charter values to exercise its discretion to not declare the strike to have been illegal; but if it is declared illegal, then to apply those values in determining the appropriate remedy. [ 31 ] Finally, the union argues that the Board should not make any determinations in regard to section 19.1 of the Code , because no such application was filed, and the [NAME], 2012 (the Regulations ), including affidavit evidence in support of an application, have not been respected. Moreover, the union claims that no evidence of irreparable harm has been presented to the Board. Similarly, it argues that no remedy should be granted pursuant to section 23 because there is no evidence of any indication that the union would not respect an order from the Board to go back to work, should such an order be issued. In any event, counsel for the union states that the union would respect any order that the Board issues.

IV. Analysis and Decision [ 32 ] The Board must first examine whether the actions by members of the union constitute a strike within the meaning of the Code . If so, the strike would be unlawful because the union has not met the requirements under section 89 of the Code . The Board will then examine whether it should exercise its discretion to declare an unlawful strike and to order a remedy taking into consideration Charter values in the circumstances of this case. A. Did members of the union engage in a strike? [ 33 ] Section 3(1) of the Code defines a “strike” as follows: strike includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output. [ 34 ] It is not in dispute that the union was not in a legal strike position on November 27, 2025. What is in dispute is whether the refusal to cross a picket line amounted to a strike, considering the specific language of the CBA and of the Charter values. [ 35 ] The Board has consistently applied an objective test to find whether a strike has occurred (see [NAME] ). Its inquiry focuses on whether there was a cessation of work done in concert or in accordance with a common understanding. The reasons for the refusal are not relevant to the analysis.

1. Was there a refusal to cross a picket line by employees in combination, in concert or in accordance with a common understanding or another concerted activity on the part of employees in relation to their work that was designed to restrict or limit output? [ 36 ] The union has advanced a distinction to characterize the failure of all scheduled employees to show up for work on the morning of November 27, 2025. It invites the Board, through an interpretation of article 3.02 of the CBA, to conclude that members of the union did not refuse to cross a picket line. Rather, it claims that they decided to take negotiated leave. [ 37 ] The union also advances that the choice to take leave was in fact an exercise of freedom of conscience, as indicated in the wording of the article. The union is inviting the Board to revisit its usual analysis, as it states that such reasoning is based on International Longshoremen’s Association, Locals 273, 1039, 1764 v. Maritime Employers’ Association et al. , [1979] 1 S.C.R. 120 ( International Longshoremen’s Association ), a Supreme Court of Canada (SCC) decision from 1979 that found that a refusal to cross a picket line, based on ethical considerations, constitutes a common understanding for the purposes of the Code . The union claims that freedom of conscience, as protected by the Charter , should inform a values-based interpretation lens, through which the Board should apply the definition of “strike” to the facts of this case. [ 38 ] The Board will first address the union’s argument based on the wording of article 3.02 of the CBA. It notes both the subtitle of the article as well as its first sentence: Article 3.02 Recognition of Picket Lines The Company recognizes the right of the individual Union members to refuse, as a matter of conscience, to cross a legal picket line of any union engaged in a strike or lockout. The Company will not discipline any Employee for failing to cross a legal picket line. Any Employee failing to report to work as a result of his/her refusal to cross a legal picket line shall be considered to be absent without pay. In such circumstances, the Employee may choose to use banked hours or any earned, but unused, vacation entitlement to cover the loss of his/her wages. (emphasis added) [ 39 ] The Board notes that the article proposes a particular status for employees who have invoked article 3.02 of the CBA, namely that of “absent without pay.” The clause also designates a form of remuneration for employees who avail themselves of this negotiated right, namely that of the use of banked hours, or vacation entitlement. [ 40 ] By focusing on the right to take leave and the wording in article 3.02 of the CBA, the union’s argument seeks to remove the notion of refusing to cross a picket line from the Board’s analysis. Indeed, no employees, including the [NAME], testified as to why they did not attend work as scheduled on November 27, 2025. [ 41 ] However, the Board notes that to be considered absent without pay under the CBA, and to be effectively paid nonetheless through banked hours or earned vacation, the employee would have to have met the condition precedent in the article, namely that of having refused to cross a picket line. In the Board’s view, to invoke the benefits included in article 3.02 of the CBA is to submit that employees refused to cross a picket line. As such, the union’s suggested interpretation of the article, to allow for a conclusion that employees did not refuse to cross a picket line but were merely taking advantage of leave, is simply inconsistent with the language itself. [ 42 ] In addition , the fact that a leave provision is provided in the CBA does not necessarily mean that no strike can take place. T he Board has previously found that the coordinated taking of leave could amount to a strike. For instance, in [COMPANY]. , 2011 [NAME] LD 2567, it found that an unusual number of “book offs” done in a context of [NAME] unrest amounted to an unlawful strike: The Board notes, in this case, that the IAMAW, on May 19, 2011, did advise its members not to engage in a “book off” and/or work slowdown in response to slowdown rumours [COMPANY] had brought to its attention. The Board has considered that the May 20, 2011 events occurred on the eve of a Canadian holiday weekend. A large number of employees did, in fact, book off work. The Board notes a clear impact on YVR’s operations. The Board also notes that these events occurred as significant bargaining issues were straining the parties’ relationship, including the May 16, 2011 issuing of 70 layoff notices. The Board has been persuaded that the confluence of these activities demonstrate that an unlawful strike occurred on May 20, 2011. (page 6) [ 43 ] The Board also finds that the facts of the present matter do not support the interpretation put forward by the union. Turning to those facts, it has analyzed [NAME]’s evidence presented during the hearing, including her notes taken while she had contacted employees the morning of November 27, 2025, to confirm the reasons that she had been given as to why employees did not show up for work. The following are examples of the reasons she noted during the conversations with employees: • I was called by Herb last night • Got to gate. Saw picket line and turned around • Stopped at gate; chatted with people; confirmed it was a picket line and turned around • Got to picket line and turned around • My understanding- not to cross the picket line… need to direct to shop steward • Respect the picket line- went to gate • Did not cross the picket line • Based on article, ‘personal choice’ to not cross line • Picket line at gate. Article 3.02 • Came to work; picket line at gate; turned around • Made it to line; drove back… [ 44 ] In total, [NAME] called over 30 employees who were scheduled to work on the morning of November 27, 2025. She was able to reach most of them for a live conversation, during which only two referenced the CBA. Two employees said that they received a call from someone, while the remainder indicated that they drove to work and turned around when they saw the picket line. [ 45 ] The Board was only presented with [NAME]’s version of events, as none of the above-mentioned employees testified before it as to the reasons for their decision not to work on the morning of November 27, 2025. However, the Board cannot ignore the fact that the only difference between that day and any other day is the existence of the picket line formed by [NAME] employees. This, coupled with the fact that the union had held a meeting the night before to inform its members of the [NAME] strike and the picket line to be set up the next day, is sufficient objective evidence in the Board’s view that members engaged in a refusal to work in combination, in concert or in accordance with a common understanding. Therefore, based on the preponderance of evidence, the existence of a picket line outside of the workplace appears to have been the causal factor that the Board can infer for most employees’ stated reasons for being absent from the workplace on November 27, 2025. [ 46 ] Even if the evidence had shown that all employees announced that they were taking a leave of absence on November 27, 2025, it would have still been open to the Board to find that there had been a refusal to work in combination, in concert or in accordance with a common understanding, or other concerted activity designed to restrict or limit output. Moreover, even an overt statement on behalf of all employees that they were staying home as “conscientious objectors” to the crossing of a picket line would not have granted them any kind of special immunity to the application of the Code ’s obligations. As [NAME] J. A. held in [NAME] , the harmful effects of the activity are immediate and independent of any meaning conveyed, and “[p]roduction or services cease as soon as employees refuse to work, regardless of whether they are refusing to cross a picket line, attending a political protest, or simply defecting en masse to go fishing” (paragraph 37). Such leaves taken in the context of the events of November 26 and 27, 2025, would have convinced the Board that a strike had taken place.

2. What is the impact of the application of Charter values on the Board’s finding that there was a strike? [ 47 ] In the Board’s view, applying Charter values does not change its conclusion. The definition of “strike” as interpreted by the Board has already been found to infringe union members’ right to freedom of expression under section 2(b) of the Charter but to be justified under section 1 (see [NAME] ). Further, the same analysis would apply to a breach of section 2(d), which protects freedom of association. [ 48 ] In this case, the union is not alleging that the definition of “strike,” as applied by the Board, infringes the right to freedom of conscience protected by section 2(a) of the Charter . Rather, it invites the Board to make its determination considering the Charter value that underpins freedom of conscience. The union states that the Board has not done this in previous case law. [ 49 ] To undertake a Charter values analysis, the Board must first ask itself what value is underpinning section 2(a). To this end, the union drew the Board’s attention to R. v. Morgentaler , [1988] 1 S.C.R 30. In that decision, Justice Wilson cited with approval some comments made in R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295, regarding the extent of the protection of section 2(a): It should also be noted, however, that an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or “firstness” of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as “fundamental”. They are the sine qua non of the political tradition underlying the Charter . Viewed in this context, the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter . Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. For the present case it is sufficient in my opinion to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose. I leave to another case the degree, if any, to which the government may, to achieve a vital interest or objective, engage in coercive action which s. 2( a ) might otherwise prohibit. [Emphasis added.] (page 177) [ 50 ] The underpinning of the value of freedom of conscience is therefore the right to think, believe and act on moral or ethical views that one’s conscience dictates without interference or coercion. In this case, the Board views a connection or nexus with the protection provided by the freedom of expression, as well as that of association. In effect, by refusing to cross a picket line, a person can be exercising their freedom of conscience and their freedom of expression, all within a context of their right to engage their freedom of association as a member of a trade union. [ 51 ] The union cautions the Board against relying on International Longshoremen’s Association because it was decided prior to the enactment of the Charter . However, the Board is of the view that Justice Estey’s statutory interpretation of the Code , as it then was, still applies today. He had noted that the deletion of the qualification that the withholding of services be done for the purposes of compelling the employer to accept proposed terms of employment indicated that [NAME] had adopted an objective definition of “strike.” He continued to hold that “whether the motive be ulterior or expressed is of no import, the only requirement being the cessation pursuant to a common understanding” (page 139). [ 52 ] Justice Estey also stated the following: In this case the “concert”, the “combination” or the “common understanding” may be considered to have a common root in the principle of [NAME] organization which forbids the crossing of picket lines. Section X(b) of the agreement with Local 1039, Article 12:02 of Local 273, and the definition in the Code , when given the ordinary meaning of “common understanding”, seem to be an attempt by the authors to provide for the very situation where the “cessation of work” results from a concept jointly held by the employees, such as the principle against the crossing of picket lines. ... (page 139) [ 53 ] This reference to a “common root in the principle of [NAME] organization which forbids the crossing of picket lines” can easily be transcribed into a post- Charter analysis of the application of the Charter value of freedom of conscience to the instant case. Such analysis can also be informed by [NAME].’s reference in his disposition of the judicial review of one of the underpinnings of [NAME] , namely the Board’s decision in [NAME]’ Association , 2007 [NAME] 384. In characterizing the significance of not crossing a picket line for union members, he wrote the following in [NAME] : [ 57 ] In addition, not crossing another union’s lawful picket line is widely regarded by members of the [NAME] movement as an ethical obligation. Hence, I am inclined to think that, as applied to the facts before us, the impugned provisions of the Code also have a negative effect on the freedom of expression value of promoting “the diversity in forms of individual self-fulfillment and human flourishing”: Irwin Toy at 976. … [ 54 ] The union is asking the Board to review these judicial pronouncements considering the values that underpin freedom of conscience. As mentioned, those are the right to think, believe and act on moral or ethical views that one’s conscience dictates without interference or coercion. The Board does not see a contradiction between the exercise of that right and the possibility of finding a common understanding when multiple employees refuse to cross a picket line. That refusal can be an exercise of individual conscience. It can also result from a union telling its members not to cross the picket line (although no such finding is made in this case). [ 55 ] The Board’s finding of a common understanding was made regarding the entire context of the matter, not just the fact that employees did not cross the picket line that morning. Its finding was not a mechanical application of the SCC’s decision without regard for the facts that were before it. [ 56 ] However, the Code prohibits mid-contract strikes in an attempt to equitably balance the interests of [NAME] and management (see [NAME] ). As noted by the Federal Court of Appeal, the prohibition is absolute, regardless of the expressive content of the work stoppage, and is temporary because it only applies while a CBA is in force. It is intended to limit the adverse consequences of mid-contract work stoppages and not to curtail employees’ freedom of expression. [ 57 ] The Board must now balance the value of being able to hold and act on beliefs with the Code ’s prohibition of mid-contract work stoppages (see [NAME] , at paragraphs 55–58; and [COMPANY] v. [NAME] (Attorney General) , 2015 SCC 12, at paragraph 39 ( [COMPANY] )). To the extent that the prohibition does not allow employees to fully manifest their beliefs as dictated by their conscience, it comes into conflict with the Code . However, the Charter values analysis requires a balancing of interests. [ 58 ] In [NAME]. summarized his assessment of the proportionality of the impact on the freedom of expression in that case in comparison to the achievement of the statutory objectives of the Code , as follows: [ 69 ] Here the [NAME] is whether the extent of the impairment of employees’ freedom of expression is disproportionate to the achievement of the statutory objectives. In my opinion, it is not. While the prohibition of mid-contract strikes does curtail employees’ ability to express a message of union solidarity in a particularly powerful manner, it also leaves them free to express their support for striking employees in other ways, including joining them on the picket line outside work hours. [ 70 ] In view of the well-recognized social costs of industrial conflict, I am not persuaded that the infringement is disproportionate to the benefits of achieving the pressing and substantial objective of the Code . [ 59 ] The Board is of the view that the same options are open to the union in this matter: members are free to express their support for [NAME]’s striking employees in other ways, including by joining them on the picket line outside work hours or by expressing their solidarity for the strike on social media. Therefore, they are not prevented from manifesting their beliefs altogether. [ 60 ] Indeed, such a compromise is in keeping with the objectives of the Code , which is a key aspect in the Board’s application of Charter values, whether it be freedom of association or expression or freedom of conscience. As the Board noted in [NAME] , the right to strike is an essential part of the collective bargaining process. However, there is no standalone unrestricted right to strike at any time, even during the term of a CBA purporting to provide such a right. Permitting parties to contract out of this prohibition, through negotiated language in the CBA, would defeat this purpose. [ 61 ] Employees are free to hold certain beliefs regarding the importance of respecting picket lines. They can manifest those beliefs and show solidarity for the picketers. What they cannot do is manifest those beliefs in a way that contravenes the Code . Interpreting the definition of “strike” in such a way that it would permit employees to participate in mid-contract work stoppages whenever they do so as an exercise of their own conscience would not be a proper balancing of the Charter value and the statutory objective. Further, it would have the practical effect of offering greater protection to employees who invoke their conscience when refusing to cross a picket line than those who do so as an exercise of their freedom of expression or association, which would lead to an absurd result. In short, the Board has not been convinced that there is a hierarchy of Charter values such that freedom of conscience should be given some form of higher standing than other Charter values in the [NAME] relations context. B. What is the impact of the application of Charter values on the exercise of the Board’s discretion and any remedies to be ordered? [ 62 ] The union also asked the Board to not issue a remedy, even if it were to find that a strike did occur. The union asks the Board to exercise its discretion in a manner that is consistent with the Charter values of freedom of association and expression, with case law from the Board and courts of various jurisdictions, including the SCC, and with freedom of conscience. The Board notes that in [NAME] , it issued a declaration but refused to issue an order. In this case, the Board both issued a declaration and ordered employees back to work. [ 63 ] In terms of the impact of Charter values on the Board’s exercise of its discretion to declare an illegal strike, the Board in this matter is faced with the same arguments brought by another local of the union in [NAME] . The union is not challenging the constitutional validity of the prohibition against mid-contract strikes but is simply asking the Board to apply Charter values and refuse to declare an unlawful strike, even if it were to find one (see [NAME] , at paragraph 88). In [NAME] , the parties had also negotiated a clause whereby failure to cross a legally established picket line would not breach the parties’ agreement against mid-contract work stoppages. However, that clause did not refer to employees’ conscience. The union asked the Board to give precedence to this freely negotiated clause that allowed employees to refuse to cross a picket line. [ 64 ] In [NAME] , the Board comprehensively canvassed the issues of the Charter values underpinning the freedom of expression and association and balanced them with the Code ’s objective of the prohibition against mid-contract strikes. It found that the circumstances of the case favoured upholding the broader public interest of maintaining [NAME] relations stability. In doing so, the Board considered the SCC’s decisions in Health Services and Support – Facilities Subsector Bargaining Assn. v. [NAME] , 2007 SCC 27, and [COMPANY] v. [NAME] , 2015 SCC 4, reasoning as follows: [ 94 ] In the Board’s view, the 2015 decision in [NAME] Federal of [NAME] does not change this analysis. It is apparent from the SCC’s statements that what is protected by the Charter is not a standalone unrestricted right to strike at any time, even during the term of a collective agreement. What is protected is the right to strike as an essential component of the collective bargaining process. The SCC found that “a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement” (paragraph 75). [ 95 ] Section 89 of the Code sets out the specific steps and time frames needed to acquire the right to strike. These steps include giving a notice to bargain, attempting to bargain collectively and—if bargaining is not successful at this stage—filing a notice of dispute with the Minister of [NAME] and giving a strike notice. These steps are tied to collective bargaining time frames and are meant to ensure a certain degree of predictability to work stoppages. [ 96 ] The overarching purpose of the prohibition against mid-contract strikes and the requirements of section 89 of the Code is to maintain [NAME] relations stability and predictability of [NAME] disruptions. The trade-off for the prohibition against mid-contract strikes is that every collective agreement must contain provision for the final settlement of disputes relating to the interpretation and application of the collective agreement without a work stoppage (see section 57 of the Code ). [ 97 ] Under the Code ’s framework, when disputes arise during the term of the collective agreement, the proper recourse is to file a grievance. When disputes arise during collective bargaining, the parties must follow the timelines in the Code to acquire the right to strike or lockout. Allowing a carve-out to the prohibition against mid-contract strikes in the circumstances of this case would jeopardize the statutory objectives of the Code for the same reasons expressed by the FCA in [NAME], Local 333 v. [COMPANY] . [ 98 ] Having considered the statutory objectives of the prohibition against mid-contract strikes with the Charter rights and the values at play, the Board finds that in the circumstances of this case, the balance favours upholding the broader public interest in maintaining [NAME] relations stability. Carving out an exception to the prohibition against mid-contract strikes or the requirement to comply with section 89 of the Code in the circumstances of this case risks jeopardizing the Code ’s statutory objectives of preserving [NAME] relations stability and the predictability of work stoppages. [ 65 ] Given that the union in that matter did not invoke freedom of conscience as the union does in this case, and given that the CBA clause in [NAME] did not refer to employees’ conscience, the Board will now consider the impact of that additional Charter value on the exercise of its discretion to declare that an illegal strike has occurred and to order employees back to work. [ 66 ] The union argues that the Board’s findings in [NAME] , and the cases from which it flows (rendered by the Board as well as the courts, including the SCC), should be re-examined in light of the invoking of freedom of conscience as a Charter value and given the paucity of case law interpreting the application of freedom of conscience in [NAME] law generally, and specifically in light of the facts of the instant case. [ 67 ] In applying the Charter value of freedom of conscience to this case, it also bears repeating that such application must be proportionally balanced with the objectives of the Code (see [NAME] , at paragraphs 55–58; and [COMPANY] , at paragraph 39). [ 68 ] The Preamble to Part I of the Code refers to the fundamental Charter right of freedom of association as part of a larger context of promoting good industrial relations: WHEREAS there is a long tradition in Canada of [NAME] legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes; AND WHEREAS Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound [NAME]-management relations; AND WHEREAS the Government of Canada has ratified Convention No. 87 of the [NAME] concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard; AND WHEREAS the [NAME] of Canada desires to continue and extend its support to [NAME] and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all. (emphasis added) [ 69 ] Apart from the fact that freedom of expression and freedom of conscience are not included in the Preamble, the Board fails to see how carving out space for union members to either express themselves or make a choice in line with their conscience on any issue as it pertains to a third party through the withdrawal of their services has any relevance to the effectiveness of the [NAME] relations between the union and the employer in this case. [ 70 ] Simply put, the union members’ right to freedom of conscience as expressed in article 3.02 of the CBA (whether specifically exercised in this case or not), and applied herein as a Charter value, in the context of a refusal to cross a picket line of another employer when the conditions of section 89 of the Code have not been met, is inconsistent with the Code ’s objectives of promoting free collective bargaining and the constructive settlement of disputes as the basis of effective industrial relations. As the Board found in [NAME] , the balancing favours the broader public interest of upholding [NAME] relations stability. As such, issuing a declaration is an appropriate remedy in this case. [ 71 ] Lastly, in [NAME] , the Board decided not to order employees to cross the picket line. It did so because of a set of very specific circumstances that are not present in this case. A unit of [NAME] employees were lawfully striking, which prevented another unit of employees from performing their usual duties. The employer ordered those employees to report for work at the precise location where the picket lines were located. This was not their usual workplace. Further, the Board was presented with evidence that the employer could have allowed those employees to perform work without placing them in a situation where they had to cross their colleagues’ picket lines. The evidence was also to the effect that those employees were willing to report to work if there was no picket line. [ 72 ] In this case, [NAME] simply asked its employees to perform their usual duties in their usual location. To do so, they had to cross the picket line set up by [NAME] employees. Therefore, unlike in [NAME] , the employer did not ask its employees to cross their colleagues’ picket line when another solution did not require them to make that choice. [NAME] employees were asked to cross the picket line of another employer altogether. The fact that both employee groups belong to the same union makes this choice difficult. However, it does not affect sound [NAME] relations such that the Board should refuse to order the usual remedy of ordering employees to report to work. C. The Other Remedies Requested by the Employer [ 73 ] Two notable exceptions between what remedies were sought by the applicant and what was granted in Board order no. 1744-NB bear explanation. [ 74 ] First, the applicant sought to have the Board’s order filed in court (it was unclear whether the said court was federal or provincial). Filing an order in court is not a remedy that the Board routinely grants. It should only be ordered when it is necessary to support sound [NAME] relations and the constructive settlement of disputes but should not be punitive (see Air Canada , 2025 [NAME] 1207). In this case, there was no indication of failure or likelihood of failure to comply with any Board order. Further, counsel for the union undertook that the union would respect the Board’s decision regardless of the outcome. As such, the Board considered such an order premature and did not issue it. [ 75 ] [NAME], at the hearing, the employer amended its request for a remedy to include an interim order issued pursuant to section 19.1 of the Code , should the Board decide not to make a final order. Of note, the request did not include the affidavit of section 18 of the Regulations . The applicant pleaded that all the conditions for issuing an interim order pursuant to section 19.1 of the Code had been met. Although the ultimate disposition of the application and the time in which it was issued may have rendered an order pursuant to section 19.1 of the Code unnecessary, the Board reminds the parties that the Code requires that an application be made and that the supporting documents set out in the Regulations are also required. D. The Union’s Evidence and Natural Justice [ 76 ] Finally, the Board wishes to address certain arguments raised by the union at the outset of its final argument during the hearing held on November 27, 2025, namely that it would reserve its rights relating to a potential breach of its right to a fair hearing (natural justice). [ 77 ] The employer’s application was entered into the Board’s file at 7:48 a.m. PST. The Board then convened the parties to a CMC scheduled for 1:00 p.m. PST, notice of which was entered into the Board’s file at 11:25 a.m. PST. That notice contained the following (standard) content: The purpose of the CMC is to obtain an understanding of the parties’ positions on the application and to determine whether a hearing is necessary to hear arguments. If a hearing is necessary, it will be held expeditiously and on short notice . Although it is a preliminary proceeding, the CMC is considered an integral part of the hearing process. Any Board decision or rulings stemming from the CMC are binding on all the parties. (emphasis added) [ 78 ] The CMC proceeded as planned, and the Board determined that a hearing of the matter would be appropriate. During the CMC, union counsel stated that there was no substantial disagreement on the facts and that he would need to call one or two witnesses to establish the record and key points, such as whether the union counselled its members not to cross, that members acted according to their conscience and that they had access to banked time. Counsel indicated that the [NAME] was ready and able to testify. He also noted there was one witness he would have liked to call but that the [NAME] was attending a grievance arbitration between the employer and the union. The union said that it had sought the employer’s consent to adjourn the grievance arbitration but that the employer had refused. [ 79 ] Apart from raising the spectre of a [NAME] that the union wished to call but who was apparently otherwise engaged in a grievance arbitration, no submissions were made relating to: any ex parte request made to the arbitrator by the union to adjourn the grievance arbitration so that the witness attending on the union’s behalf could attend the urgent Board hearing that was likely to be held that afternoon; the identity of the witness and what that witness would have said in testimony; and the ability of any of the 34 bargaining unit employees who did not attend work on the morning of November 27, 2025, other than the [NAME], to attend the Board’s hearing in this matter and testify on the union’s behalf as to why they did not attend work. [ 80 ] The CMC was adjourned at 1:40 p.m. PST. [ 81 ] The hearing began at 2:00 p.m. PST, approximately four hours prior to the start of the evening shift at [NAME]’s operations that are the subject of this application. The application was urgent, and the Board mobilized its resources expeditiously, as is the usual practice for such matters (see [NAME] - Canada v. [NAME] Employers Association , 2024 FCA 142 ( Maritime Employers Association )) . As Justice Gleason recognized in that decision, the rapidity with which illegal strike applications are convened and heard by the Board is a function of its mandate and jurisdiction over undertakings that form the backbone of the Canadian economy, such as railways, air traffic control and ports, to name a few. Although the Board is empowered to render a decision without even holding a hearing at all (see section 16.1 of the Code ), its ability to proceed rapidly in cases where it does hold an urgent hearing is contemplated by both the Code and the Regulations . [ 82 ] At the outset of his closing argument, counsel for the union stated that the union had decided “not to push back” on what he described as the Board’s and the employer’s need to have the matter proceed so quickly but that it reserved its right to raise natural justice issues if the Board made any findings based on the fact that it did not call certain evidence. [ 83 ] Despite the expedited nature of the hearing of this case, the union presented very detailed and elaborate arguments before the Board in support of its position on November 27, 2025, including case law in support of its Charter arguments. These able submissions clearly required preparation and planning. On that basis and based on what was communicated in the CMC notice and during the CMC, the Board considers that the union was provided with sufficient time and opportunity to make its case, including marshalling the evidence that was required to support its legal position and whether to prioritize a grievance arbitration over the instant matter. Moreover, the union presented its [NAME], as its witness. He was not only the leader who had convened the November 26, 2025, meeting of employees scheduled to work on November 27, 2025, but he was also present the morning in [NAME] when his colleagues refused to cross the [NAME] picket line. [ 84 ] The Board does not consider the union’s absence of “pushback” to constitute either an objection based on procedural fairness concerns or a request for adjournment. As the Federal Court of Appeal held in Maritime Employers Association , a party must properly raise procedural fairness concerns at the first available opportunity: [ 73 ] It is well settled that parties must pursue procedural fairness concerns at the first available opportunity when it is reasonable to do so, and that their failure to object will disentitle them from raising procedural fairness issues in a subsequent judicial review application: see Halton (Regional Municipality) v. Canada (Transportation Agency) , 2024 FCA 122 at para. 38; [COMPANY]. v. Canadian Media Guild , 2014 FCA 59, 455 N.R. 115 at para. 67; [COMPANY] v. Canada (Minister of the Environment) , 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 45–47, leave to appeal to SCC refused, 39066 (14 May 2020). Thus, objections to a proposed course of proceeding must be raised and not abandoned before an administrative decision-maker if the party wishes to pursue them as alleged violations of procedural fairness on judicial review. Within the confines of appropriate decorum (see e.g. [NAME] v. Canada (Minister of Citizenship & Immigration) , 2006 FC 1015, 56 Admin. L.R. (4th) 114 at para. 16), it should be “…evident from the circumstances as a whole that one was not agreeing to or accepting the conduct in [NAME]” ([NAME], Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2021) (loose-leaf revision 2024- 07) (WL) [[NAME]] at §16:131). If put forward unsuccessfully, a best practice may be to advise the decision-maker that the objection is maintained for the purposes of judicial review, although its mere raising is likely sufficient for that purpose: [NAME] at §16:133. [ 74 ] In the matter at hand, [NAME] Canada’s counsel said he preferred proceeding the next morning but did not press the issue or claim that his client could not proceed that evening. This falls short of objecting to proceeding that evening. Thereafter, [NAME] Canada effectively abandoned whatever concerns about scheduling it might have had when counsel stated that he was in the Chairperson’s hands when the schedule was further discussed. Given this, [NAME] Canada cannot now successfully argue that, in proceeding as it did, the [NAME] violated its procedural fairness rights. [ 85 ] If the union was of the view that it could not properly make its case without the [NAME], it could have requested an adjournment of the hearing. This would have allowed the Board to deal with the request, probe further if necessary and render a decision after allowing all parties to be heard. However, as no such request was made, the Board went ahead with the hearing.

V. Conclusion [ 86 ] For these reasons, the Board declared that an unlawful strike had occurred and issued the orders set out in Board order no. 1744-NB. ____________________ [NAME]-Chairperson