[1986] OLRB Rep. January 48
2134-86-M International Union of Operating Engineers, Local 793, Applicant, V. Gaston H. Poulin Contractor Limited, Respondent
BEFORE: Ian C. Sprin gate, Alternate Chairman, and Board Members F. C. Burnet and H. Kobryn.
APPEARANCES: Murray Gold and Edward Kaplanis for the applicant; Gerald Boivin and Gaston Poulin for the respondent.
DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN, AND BOARD MEMBER H. KOBRYN; December 31, 1986, as amended January 14, 1987
- This is an application for right of access under the provisions of section 11 of the Labour Relations Act, which provides as follows:
Where employees of an employer reside on the property of the employer, or on property to which the employer has the right to control access, the employer shall, upon a direction from the Board, allow the representative of a trade union access to the property on which the employees reside for the purpose of attempting to persuade the employees to join a trade union.
The respondent is engaged in a highway construction project about 20 miles west of the community of Ignace in the District of Kenora. The respondent's employees reside in a temporary bunkhouse and trailers located on the construction site.
This matter was listed for hearing on November 27, 1986. On that date the parties entered into the following agreement:
WHEREAS the parties are desirous of settling the matters in dispute between them, and agree to the following terms of an access order;
THEREFORE, the parties are agreed that the Ontario Labour Relations Board should issue a direction pursuant to s. 11 of the Act on the following terms, and request that the Board adjudicate with respect to the two below stated issues remaining in dispute:
I. AGREED TERMS
- The two authorized representatives of the International Union of Operating Engineers, Local 793 (the "Union") shall be entitled to access to the project on the following terms and conditions until the terminal date following the date of any application for certification herein:
(a) On each occasion in which the authorized representatives desire access, 24 hours notice shall be given to the company by telephone to the Construction Office (Phone 705-362-4404) or, with 24 hours notice, in person to a foreman of the Employer or to another member of the Employer's supervisory personnel.
(b) After giving notice as aforesaid and after providing proper identification, such as a business card at the project entrance, the authorized representatives shall be transported upon request from the campsite to the worksite to view the site and the working areas. The authorized business representatives undertake not to disrupt or interfere with employees or with work in progress at the work site at such times and agree to abide by all security and safety regulations applicable to the project.
(c) After giving notice as aforesaid, the authorized representatives shall be allowed access to the campsite between the hours of 6:00 p.m. and 10:00 p.m. The authorized representatives agree to abide by all rules and regulations applicable to the bunkhouse and other campsite facilities.
II. TERMS IN DISPUTE
A. The Effective Date of This Order
The Applicant Union requests that this order should be effective immediately. The respondent employer requests that this order be effective as of December 8, 1986.
B. Waiver of Liability
The Respondent Employer requests that the authorized representatives of the Union be required to sign a waiver of liability in respect of any injury or loss that may occur in respect of his person or property while on the worksite. The Respondent Employer further requests that the said authorized representatives produce such waiver of liability upon their attendance at the worksite. The Union rejects this proposal.
The parties are in agreement that the Board direct that two representatives of the applicant be provided access to the job site. They have also agreed on a number of terms governing such access. The parties disagree with respect to two matters, namely when the access order should become effective, and whether the union representatives should be required to sign a waiver of liability with respect to any injury or loss that may occur on the job site. Both parties led evidence and made representations to the Board relating to these issues. The Board then made an oral ruling.
The respondent contended that the access order should not be effective until December 8, 1986, since that was the earliest date that Mr. Gaston Poulin, the owner of the respondent, could be on the job site. Counsel for the respondent acknowledged that while Mr. Poulin desired to be on the job site when access first occurred, because other management officials would be on the job site, this was not a necessity. The applicant objected to any delay in the access order, voicing a concern that construction activity on the site might soon be halted by winter weather. Having regard to the possibility that activity at the job site might soon come to a halt, as well as the fact that management officials other than Mr. Poulin would be on the site, the Board rejected the respondent's request for a delay and ruled that the access order would become effective November 27, 1986.
In support of its position that union representatives be required to waive any liability with respect to possible injury or loss while on the job site, the respondent noted that the job is a particularly dangerous one, involving the blasting of rock. The applicant, however, objected to this requirement, noting that its representatives had already agreed to abide by all security and safety regulations on the project.
When directed by the Board, access by union representatives to a job site is a statutory right. The union representatives are in a position similar to others with a legal right to be on the site. The exercise of this right should not be made subject to a willingness to waive liability. In the unlikely event that a union representative is injured or suffers loss when on the job site, the rights of the parties will presumably be determined by a court of competent jurisdiction. Given these considerations, at the hearing we rejected the respondent's request that the union representatives be required to sign a waiver of liability.
We hereby affirm our oral ruling of November 27, 1986 granting immediate access to representatives of the union in the terms agreed to by the parties.
DECISION OF BOARD MEMBER F. C. BURNET;
1 am in accord with the opinion of my colleagues that the access order should become effective November 27th, for reasons cited, but I disagree with their decision with respect to the waiver.
The fact that there is some degree of risk when anyone attends a work site means that there is also a commensurate degree of cost, arising out of potential liability claims. Whether the risk, and therefore the cost is great or small (as the employer and the union respectively argued before us) is immaterial to the issue. The fact is that a cost exists, arising out of the organizing activity, and the question is one of principle as to who should bear it.
Long-established legislative provisions and companion Board policy are crystal clear. An employer is not permitted or required to underwrite or subsidize organizing costs of a union, either unilaterally or by agreement with the union. This is such a cost and the Board should apply the legislative principle and policy to its allocation.
It is not valid to assign the cost to the employer on the rationalization that the union's right of access is statutorially based. So are many of its rights but this does not mean that the union may pass the cost of exercising those rights to other parties. As a specific example, we do not invoke the statutory basis of the right of access to compel or authorize the employer to pay the union organizer's cost of transport or lodging at a remote site, even when there are no alternative facilities to those of the employer. On the contrary, in that situation, it is specifically required that the employer not pay the costs, though he may be compelled to make his facilities available.
It may be pertinent to consider how this position squares with that of government inspectors and officials who have a similar statutory right of access without being obliged to sign a waiver. In my opinion, their position is clearly distinguishable on two grounds. First, their attendance at the site is either obligatory as a matter of public policy to enforce legislative standards, or it is at the behest of the employer to participate in government services. The union organizer is the representative of a private association, acting voluntarily in pursuit of its own interests and objectives. Second, the union's statutory right of access, like its other statutory rights, is subject to the specific legislative prohibition against the payment of union organizing costs by employers.
I would accordingly grant the employer's request for execution of a waiver as a condition of access.