Ontario Labour Relations Board

[1983] OLRB Rep. May 623

0151-83-R; 9161-83-R; 0249-83-R International Brotherhood of Electrical Workers Local 1687, Applicant, v. Campbell Red Lake Mines Limited Detour Lake Project, Respondent, v. Sudbury Mine, Mill and Smelter Workers Union, Local 598, Intervener M 1, v. United Steelworkers of America, Intervener M2; United Steelworkers of America, Applicant, v. Campbell Red Lake Mines Limited Detour Lake Project, Respondent, v. International Brotherhood of Electrical Workers, Local 1687, Intervener MI, v. International Union of Operating Engineers, Local 793, Intervener M2, v. Sudbury Mine, Mill and Smelter Workers Union, Local 598, Intervener M3; International Union of Operating Engineers, Local 793, Applicant, v. Campbell Red Lake Mines Detour Lake Project, Respondent.

BEFORE: R.O. MacDowell, Vice-Chairman and Board Members J.A. Ronson and P. J. O'Keeffe.

APPEARANCES: Elizabeth J. Shilton Lennon, Mo Sheppard, Homer Seguin and Mike Farrell for the United Steelworkers of America; R. Drmaj for the respondent; A.M. Minsky, J. Redshaw and S. Tatrallyay for International Brotherhood of Electrical Workers, Local 1687, and International Union of Operating Engineers, Local 793; L. C. Arnold and Rap Duhaime for Sudburv Mine, Mill and Smelter Workers Union, Local 598.

DECISION OF THE BOARD; May 20, 1983

1. The name of the respondent is amended to read: "Campbell Red Lake Mines Limited Detour Lake Project".

2. This is an application for certification by the United Steelworkers of America, which was scheduled for hearing together with certain related applications filed by the International Brotherhood of Electrical Workers, Local 1687 and International Union of Operating Engineers, Local 793.

3. The respondent, as its name indicates, is a mining company currently engaged in a project at Detour Lake in the District of Cochrane. It employs approximately 120 employees with various skills or trades. The four unions each seek certification as the bargaining agent for some or all of these employees.

4. The precise segment of the work force which each union seeks to represent need not be detailed here since the appropriateness of their proposed bargaining units is a critical issue in dispute in this case. It suffices to say that the United Steelworkers of America (the "Steelworkers"), and the Sudbury Mine, Mill and Smelter Workers Union, Local 598 ("Mine Mill") each seek to represent a broadly based "all employee", "industrial" bargaining unit including all of the respondent's employees on the project (with certain exceptions not here relevant), while the International Union of Operating Engineers, Local 793 ("the IUOE") and the International Brotherhood of Electrical Workers, Local 1687 ("the IBEW") seek a more narrowly defined "craft" bargaining unit including only those employees exercising skills within their respective trade jurisdictions. Whether the IBEW and IUGE are entitled to these more narrowly defined bargaining units will depend on the application of section 6(3) of the Act to the particular circumstances of this case.

The Terminal Date Problem

5. Although not first in time, the principal certification application is that of the Steelworkers because of the number of individuals potentially included in its proposed bargaining unit and the depth of its support. It is in that application that the rival industrial union, Mine Mill, has intervened. The IUGE and IBEW have also intervened to protect their claim to represent employees within their respective craft jurisdictions. In addition, like the IBEW, the IUQE has filed its own certification application in respect of certain heavy equipment operators whom it claims fall within its own craft bargaining unit.

6. Unfortunately, the vagaries of the mails, the isolated location of the project, and the respondent's work scheduling system, have combined to create a situation in which, in our view, the persons potentially affected by the Steelworkers' application have not had adequate notice thereof. The evidence before the Board establishes that the respondent received notice of the Steelworkers' application on April 25, 1982. That notice was transmitted to Timmins, Ontario on April 27, 1982. The notice to employees potentially affected, in Form 6, was posted on Thursday, April 28, 1982 at approximately 1:00 p.m. The terminal date (the date by which employee objections or interventions by other unions must be filed) was fixed for May 3, 1982. In the ordinary course five calendar days and three working days would have been sufficient notice of the Steelworkers' application. But it was not sufficient in the circumstances of this case.

7. There are no roads in to the Detour Lake Project. The only access to the area is by air. The employees both work and reside on property owned and controlled by the employer. There is no Post Office close by and, accordingly, no way to communicate an objection or intervention in the manner prescribed by Form 6. Moreover, on April 27, 1982 (that is the day before the posting of this Notice of Application) some 29 employees or about 25% of the total labour force left the site for their scheduled period of time off. The following day at about 2:00 p.m. another 25 employees flew out. In consequence, between April 28th and May 3rd, something over 40 per cent of the total work force potentially affected by the Steelworkers' application for certification had no reasonable opportunity to consider or respond to the Board's notice of that application.

8. In the circumstances, the Board is persuaded that it should extend the terminal date originally fixed for the Steelworkers' application until May 27, 1983. That extension of the terminal date will give those employees who might wish to respond to this proceeding an opportunity to indicate such desire. In view of the number of membership cards filed by the IUOE shortly after the terminal date, but notwithstanding the notice problem referred to above, the Board has also determined that it should treat the certification application filed by the IUOE as having been made on the date of the making of the original (Steelworkers) application, and further that the IUOE and IBEW applications, should have the same extended terminal date as that fixed for the Steelworkers' application. These determinations are made pursuant to section 103 of the Labour Relations Act.

The Access Issue

9. A little over a year ago, pursuant to section 11 of the Labour Relations Act, the Steelworkers sought access to the respondent's employees. As we have already noted, the Detour Lake project, where the employees work and reside, is an isolated location accessible only by air. That application was settled on terms which need not be set out here, save to note that it was granted on terms which would minimize disruption of the respondent's operations. Subsequently, it appears that the respondent has also accorded approximately the same access to representatives of the Mine Mill. No specific access has been given to the IBEW or the IUOE nor has any such access been sought.

10. Counsel for the respondent expressed his concern that the extension of the terminal date could spark a period of inter-union rivalry in which all four unions would seek access to the respondent's work site; and, he noted that this work site was designed to afford accommodation to persons actually working there, not union organizers. In view of the unfortunate consequences sometimes associated with inter-union rivalry in the north, he urges the Board to either ban access to the work site altogether, or set out some general rules within which the various union representatives must conduct themselves.

11. We decline to do so. The respondent has already established certain basic ground rules which have been extended to both the Steelworkers and Mine Mill. We see no reason, at this stage, to depart from those ground rules, to affirm or deny their applicability to other unions, or to substitute such other rules as, in our view, might be more appropriate. We do not think that we should presume that the inter-union rivalry apparent in this case would necessarily result in a disruption of the respondent's ongoing business operations. On the other hand, we do note that the respondent is in the mining business. It is not running a hotel for union organizers. We see no reason why the respondent should subsidize the unions' organizing costs, and we expect that the applicants involved in this matter will reimburse the respondent for all reasonable costs associated with the pursuit of their rights under the Act. Further, we note as we did at the hearing, that the unions' right to be present at the work site is ultimately founded upon the employees' right to form or join a trade union. There is no right to engage in organizing activities during working hours or which spill over into working hours. Should there be any disruption of the employer's production process, we would be sympathetic to any employer action reasonably required to minimize such disruption.

The Charges Against the Steelworkers

12. By letter dated May 6, 1983 counsel for Mine Mill raises a number of allegations against both the respondent and the Steelworkers. It is asserted, inter alia, that the employer advised the Steelworkers of Mine Mill's intention to try to organize its employees, and further, that the respondent supplied the Steelworkers with a list of its employees. Both the Steelworkers and the respondent denied this latter allegation, and when pressed at the initial hearing in this matter, counsel for Mine Mill withdrew it. We are left, then, with the allegation that Steelworkers were advised that the Mine Mill was also intending to organize on the site, and the assertion that such advice constitutes improper support for the Steelworkers union of such nature as to raise the bar specified in section 13 of the Act. That section reads as follows:

The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

13. In our view, this submission is without foundation. The Steelworkers union is not a "sweetheart" or company-dominated organization to which the provisions of section 13 of the Act are ordinarily intended to apply. Here, the Steelworkers had been organizing for some time, had applied to the Board for an access order, and had settled that case on terms acceptable between the respondent and the Steelworkers union. Assuming, without finding, that the respondent advised the Steelworkers that another union was on the scene seeking access to the employees we do not think there is any basis for suggesting that the respondent has thereby improperly given support to the Steelworkers. Given the remote location and the potential limitations of transportation or accommodation, it is perfectly natural for the employer to advise the Steelworkers of the presence of a rival which might also claim the protection of section 11, and, in so doing, raise practical problems in respect of coordinating access. Indeed, it was precisely that difficulty which the respondent raised in its submissions before us. We do not consider notice to the Steelworkers of Mine Mill's presence to be a factor triggering section 13 of the Act.

14. At the continuation of the hearing in this matter, the Board will entertain the evidence and representations of the IUOE and the IBEW with respect to their entitlement to a craft bargaining unit, and in particular, whether they meet the so called second test (an established bargaining practice) established by section 6(3) of the Act. The Board notes the undertaking of counsel for the IUOE and IBEW to file the documentary evidence upon which they will rely with the Board prior to the hearing so that it will be available for inspection by the other parties.