I.W.A. Canadian Regional Council No. 1 v. Great Lakes Forest Products Ltd., 1987 CanLII 3080

I.W.A. Canadian Regional Council No. 1 v. Great Lakes Forest Products Ltd.

[1987] OLRB Rep. September 1136

3408-86-M; 3242-86-M I.W.A. Canadian Regional Council No. 1, Applicant v. Great Lakes Forest Products Ltd. (Lakehead Woodlands Division), Respondent v. Canadian Paperworkers' Union, Intervener; Canadian Papenvorkers Union, Applicant v. Great Lakes Forest Products Limited, Respondent v. Lumber and Sawmill Workers' Union, Intervener

BEFORE: Judith McCormack, Vice-Chair, and Board Members F. C. Burnet and C. A. Ballentine.

APPEARANCES: Bernard Hanson, William J. Pointon and John Smithies for I.W.A. Canadian Regional Council No. 1; Brian Switzman, Cecil Makowski, Michael Hunter and Larry Quesnel for Canadian Paperworkers' Union; F. J. W. Bickford and D. H. Burn for the respondent; H. M. Pollit for Lumber and Sawmill Workers' Union.

DECISION OF THE BOARD; September 14, 1987

1These matters are two applications under section 11 of the Labour Relations Act for directions allowing the applicants access to the respondent's property for the purpose of attempting to persuade employees to join a trade union. On May 14, 1987, the Board gave the following oral decision:

After carefully considering the evidence and representations of the parties, we find that the applicants have met the criteria in section 11, and we direct that representatives of each applicant be allowed access to camps #5 17, #603, #134, #418, #234, #328, #45 and #602 on the following terms:

(a) Before attempting to enter the camp, the union desiring access shall notify Mr. Douglas Burn or his designate not later than the close of business on the last business day prior to the date on which access is desired.

(b) There shall be no solicitation of an employee during the employee's working hours.

(c) While in the camp, the representatives of CPU and IWA will obey all camp rules and regulations including those relating to the use of safety equipment.

(d) Representatives of the two (2) unions shall not be in camp at the same time. CPU and IWA will have the right to access on alternate working days.

(e) At the time of entering a camp, the union representative(s) must notify the unit superintendent or his designated representative if he or she is reasonably available.

Access on the above terms will commence forthwith. Our reasons will follow.

We now provide our reasons.

2The respondent in both cases is in the forest products business and operates eight bush camps to this end in northern Ontario. Applications for access directions to several other kinds of work sites were withdrawn by the applicants. Some 600 to 700 employees work out of these camps on a Monday to Friday, two shift rotation basis performing various functions primarily relating to the harvesting of forest products. They live in modular bunkhouses in the camps during the week and most return home on weekends. In addition to the bunkhouses, the camps include a recreation hall, a cafeteria, a steam bath, drying rooms for clothing, an administrative office, and a repair garage.

3The camps are scattered throughout an area in northern Ontario bounded by Sioux Lookout on the north, Dryden on the west, Thunder Bay on the south, and Lake Nipigon on the east. The employees who work there form part of a larger bargaining unit of approximately 1,100 woodlands employees who are currently, and have been since 1946, represented by the Lumber and Sawmill Workers' Union (the "LSWU"). Of those 1,100 employees, the vast majority are drawn from some 43 Ontario communities with a few out-of-province employees.

4Mail is delivered to the camps by a delivery system set up by the respondent which also operates its own telephone system connecting to the provincial telephone structure. Each camp has two telephone lines and at least one telephone in a public area for the use of employees. Some of the camps are serviced by provincial highways while others are accessable by roads maintained by the respondent. At least one television is provided for employees in each camp, although the quality of reception may vary, depending on the origination and strength of the available television signals. Personal radios are permitted and several copies of one of the Thunder Bay newspapers are delivered daily. Employees generally leave and return to the camps by car. Most employees remain in the camps from Monday to Friday, although some may return to their homes or visit other communities in mid-week.

5Both applicants are in the process of conducting organizing campaigns in which they seek to displace the LSWU as the bargaining agent of the respondent's woodlands employees. The organizing efforts directed towards these employees are part of a more massive campaign on the part of each applicant to wrest the bargaining rights from the LSWU for 4,000 to 5,000 woodlands employees employed by a number of different forest products companies in northern Ontario. Each of the applicants has been pursuing other means of organizing employees in addition to making these applications, including calling meetings in local community centres, leafletting, telephoning and so forth, with varying degrees of success. Both initially sent organizers into the camps who were asked to leave the property by officials of the respondent. There is no dispute that the camps are located on property owned by the respondent or to which the respondent has the right to control access.

6Before turning to the merits of these applications, we propose to address a preliminary matter with respect to the LSWU's standing before us. At the outset of these hearings, the LSWU applied to intervene in the application by the Canadian Paperworkers Union (the "CPU") over the objections of the applicant. The application by the I.W.A. Canadian Regional Council No. 1 (the "IWA") was not before us at that time as it was consolidated with the CPU application at a later point in the hearings. The Board ruled orally that the LSWU would be permitted to intervene in the case before us.

7Subsequently, a number of other applications by the CPU and the IWA with respect to Domtar Inc. and Abitibi-Price Inc. came before another panel of the Board. When the LSWU applied to intervene in those applications, its request was denied. (See: Domtar Inc., [1987] OLRB Rep April 485 and Abitibi -Price Inc., unreported, Board File 3348-86-M, April 8, 1987.) When the hearings before us resumed, the application by the IWA had been adjourned over to these proceedings. The CPU then applied for reconsideration of this panel's ruling with respect to the intervener's status to appear on the basis of inconsistency with the Domtar and Abitibi-Price decisions, and the LSWU applied to intervene in the IWA application. The Board declined to reconsider its decision and allowed the LSWU to intervene in the IWA application. We now provide our reasons.

8We do not find our decision on standing to be inconsistent with that of the panel hearing the Domtar and Abitibi Price cases. The fact that the decisions reach different results reflects distinctions in the issues and situations they address. Section 102(13) of the Labour Relations Act provides as follows:

(13) The Board shall determine its own practice and procedure which shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

Section 79 of the Board's Rules of Procedure, provides:

79. The Board may direct that any person be added as a party to a proceeding or be served with any document, as the Board considers advisable.

The Board has found previously that while certain persons or entities may have a right to standing, the Board retains a discretion to grant standing which extends beyond those circumstances in which a right can be asserted (Ontario Hydro, [1986] OLRB Rep. May 663).

9In the Domtar case the Board addressed the question of whether the LSWU had a legal right to intervene in the proceedings. The Board concluded as follows:

For the foregoing reasons, the Board is of the view that the incumbent union has no right to intervene in these proceedings because, in our view, none of its legal rights are or can be detrimentally affected by the order sought by the applicant.

10In our case our decision dealt with whether we should exercise our discretion to allow the LSWU to intervene, whether or not they were entitled to intervene as of right. We were of the view that the CPU was in essence asking for the assistance of the Board to facilitate an organizing campaign which, if successful, would result in the displacement of the LSWU as the legal bargaining agent of employees. Moreover, this application was made in the context of a massive organizing drive in which the LSWU was in danger of being displaced as the bargaining agent for four to five thousand woodlands employees. Access for a "raiding" union in these circumstances was an unusually sensitive situation, and in addition, a number of legal issues were raised with respect to section 11 which had not been previously addressed in the Board's jurisprudence. We therefore considered whether it would be useful to have the LSWU participate in the hearings whether or not it was entitled to standing as of right.

11A significant factor in our consideration in this regard was the increased potential for delay that another participant in the proceedings might create. In matters like this where expedition is critical, the Board must decide whether the benefit anticipated from the party who seeks standing on a discretionary basis is outweighed by the increased delay and expense likely to result from their participation (see Ontario Hydro, supra). In making that assessment in our case, we noted that counsel for LSWU had advised us that he would not be calling evidence. Thus it did not appear that the proceedings would become unduly protracted as a result of LSWU's involvement. (In contrast, in Domtar, supra, the employer did not contest the application and the only opposition came from the LSWU.) On balance and in these somewhat unusual circumstances, the Board was of the view that it made good labour relations sense in our case to allow the LSWU to participate in the proceedings.

12Turning to the merits of these applications, counsel for the applicants argued, among other things, that there were only two conditions set out in section 11: that is, that employees reside, and that they reside on the property of the employer or on property to which the employer controls access. Those conditions having been met in this case, they argued the Board has no discretion to refuse an order for access. They advised the Board that they were unable to find a reported Board case in which access had been denied and no such case was produced by either the LSWU or the respondent.

13The respondent and the LSWU argued, among other things, that section 11 was intended to apply to those situations in which the work sites involved were remote or isolated. In their view, an access direction should not be issued unless this was the case and the applicants could demonstrate that there were no other reasonable means of access to employees, or in the alternative, that the applicants had exhausted such other reasonable means. In addition, they took the position that the Board must be particularly alert to the difficulties involved where access is requested to employees already represented by a bargaining agent, and that the test for access in these circumstances should be more stringent.

14Section 11 of the Labour Relations Act 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 importance of access in the scheme of collective bargaining contemplated by the Act was described by the Board in Domtar, supra in the following terms:

The purpose of the Act is to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees. Under section 3 of the Act, every person is free to join a trade union of his own choice and to participate in its lawful activities. However, collective bargaining cannot become a practical reality unless employees are exposed to the debate about the pros-and cons of trade unions, or a particular union.

[emphasis original]

Similarly, the Canada Labour Relations Board pointed out in Dome Petroleum Limited [1977] CLRB R 392:

Employees have rights under the Code, but history has shown that those rights are usually only translated into a meaningful exercise of them when employees are informed of them, the method of exercising them and the benefits to be derived from their exercise. Representations of established trade unions are the common vehicle for purveying this information.

In this sense access to employees is a critical precondition to the exercise of those rights which are fundamental to the Act's premise. This is particularly so where the Act contemplates a membership card system which necessarily involves some degree of face-to-face contact as the primary means of initiating a collective bargaining regime (see Domtar, supra, and Grand & Toy Limited [1986] OLRB Rep Sept. 1223).

15The only assistance we were able to obtain from the Board's cases with respect to the arguments before us is contained in Consolidated Canadian Faraday Limited and Dumbarton Mines Limited, [1974] OLRB Rep. Jan. 30 in which the Board said:

Having considered the representation of the respondents, we are of the view that section 10 of the Act [now section 11] is applicable to employees of an employer who reside on the property of the employer in Ontario, or on property in Ontario to which the employer has the right to control access, without further condition or restriction.

[emphasis added]

Although it is suggested that this passage supports the applicants' position, we find it a little too succinct to be helpful.

16A review of other legislation and jurisprudence provides a little more insight. We were directed to section 199 of the Canada Labour Code which reads as follows:

199(1) Where the Board

(a) receives from a trade union an application for an order granting an authorized representative of the trade union access to employees living in an isolated location on premises owned or controlled by their employer or by any other person, and

(b) determines that access to the employees

(i) would be impracticable unless permitted on premises owned or controlled by their employer or by such other persons, and

(ii) is reasonably required for purposes to soliciting union membership, the negotiation or administration of a collective agreement, the processing of a grievance or the provision to employees of a union service, the Board may make an order granting the authorized representative of the trade union designated in the order access to the employees on the premises of their employer or such other person, as the case may be, that are designated in the order.

(2) The Board shall, in every order made under subsection (1), specify the method of access to the employees, the times at which access is permitted and the periods of its duration.

We note that two of the criteria urged upon us by the respondent and the LSWU are set out explicitly in section 199. The contrast with section 11 where different criteria are specified is suggestive.

17The parallel British Columbia provision is closer to our legislation. Sections 4 (1) and (2) provide as follows:

(1) Except with the employer's consent, a trade union or person acting on its behalf shall not attempt, at the employer's place of employment during working hours, to persuade an employee of the employer to join or not join a trade union.

(2) Where employees reside on their employer's property to which he or another person has the right to control access or entry the employer or other person shall on the board's direction permit a representative authorized in writing by a trade union to enter the property to attempt to persuade the employees to join a trade union. If directed by the board and on request by the representative, the employer shall provide him with food and lodging at the current price, and of a similar kind and quality as that provided to the employees.

18Both the applicants and the respondent cited H.S. Rai Farms Ltd. et al., 82 CLLC ¶16,169 which was decided under this provision in support of their respective positions. In that case, the B.C. Labour Relations Board addressed a number of applications for access with respect to seasonal farmworkers who resided on the employers' property for a portion of the year. The union argued, as the applicants argue here, that the only criteria which had to be met were those set out in the provision. The employers urged the Board to incorporate the criteria set out in section 191 of the Canada Labour Code in interpreting the British Columbia provision. The British Columbia Labour Relations Board declined to accept this latter argument both in Rai Farms, supra, and in the subsequent case of Ledcore Construction Limited, 85 CLLC ¶16,055. It noted the differences in criteria set out on the face of the Canada Labour Code and the B.C. provision, and was not prepared to impose the conditions in the former onto the latter. The Board also found the applicant's arguments unpersuasive for reasons to which we will return later.

19We have a number of concerns about the interpretative approach urged upon us by the LSWU and the respondent. On its face, section 11 provides for a simple and definitive right of access for residential employees. As well, it must be read in the context of a legal and labour relations environment where access is crucial to the scheme of collective bargaining, and where expedition is essential if the section is to have any real value. In practical terms, timing plays a vital role in the progress of an organizing campaign and organizers seek to achieve and maintain a certain momentum over the course of the weeks leading up to a certification application. The role of timing is highlighted legally as well by the Board's treatment of "stale" membership evidence (for example, see Charterways Transportation Ltd. [1979] OLRB Rep. Nov. 1068). And where employees are already represented, timing becomes even more central because the period in which a displacement application is allowed is limited by statute. As a result, an interpretative approach to section 11 which produces protracted litigation is likely to render the provision meaningless.

20It appears to us that a construction of section 11 in which we must examine whether there are other reasonable means of access and/or whether such means have been exhausted is likely to have that effect. In addition, we are not sanguine that particularly sound conclusions can be drawn in this regard. For example, on the basis of the evidence before us, the respondent and LSWU argued that the applicants' lack of success to date was based on incompetence on the part of organizers or a lack of interest in the applicant on the part of employees who were well aware of their rights under the Act. The applicants took the position on the identical evidence that it demonstrated the difficult conditions and obstacles in their path which necessitated access orders. In fact, we found the evidence inconclusive with respect to either of these particular arguments. It is simply difficult to judge whether or why a campaign may be unsuccessful, particularly when it is in its preliminary stages, and there is no way of knowing how it may progress.

21However, were we to accept the position argued by the respondent and intervener, it would be difficult to avoid hearing this kind of evidence and engaging in what amounts to an evaluation of the efficacy and competence of the union's efforts to date. This seems to us an area fraught with difficulties and unlikely to be particularly useful. There are a wide variety of different kinds of organizing situations which unions with significant variations in organizing styles and resources address. In the face of this diversity, we are not prepared to set up a particular standard for an organizing campaign which an applicant must first meet before it is entitled to an access order. In addition, the respondent's arguments suggest that an applicant might only be successful with an application made fairly late in the campaign, when such an evaluation would have any hope of being meaningful. This seems at odds with the purpose of an access order. In the end, it appears to us that the interpretation urged upon us by the respondent and the LSWU is likely to produce a great deal of time consuming and unhelpful evidence and create such delay that the purpose of the section may well be defeated.

22We do not find the argument that section 11 was intended to apply only to geographically remote work sites compelling. There are other types of isolation beyond geographic, and if section 11 is directed at isolation, on its face it is directed at precisely the degree of isolation from communication with union organizers which usually results when employees reside on property owned or controlled by the employer. Looking, then, at the syntax of section 11, its purpose and the labour relations environment in which it must be applied, it appears to us that the submission that the only criteria which must be met are those set out in the section itself has considerable merit.

23In the alternative, the respondent and the LSWU advanced a test developed in the Rai Farms case to the effect that the appropriate criterion is whether resident employees have the same opportunity for exposure to the union as non-resident employees. The B.C. Board made the following comments in this regard:

The sensible approach to Section 4(2) is this. Unions use a variety of legitimate methods to inform employees of the advantage of union membership. Face-to-face contact with employees can be achieved in a variety of ways: direct communication at the work place outside working hours (for example, at lunch breaks) by fellow employees; leafletting and discussion at the entrance to the work site before and after work; and, approaching the employee at home after work; and, approaching the employee at home after work. But the methods are limited where employees reside on the employer's premises and access to the property is controlled by the employer. Leafletting at the entrance to such a work site, a common and accepted organizing tactic, is simply not an alternative. The employee never really leaves the site (except in rather isolated instances to attend to personal business or the like). It is less common for the union to visit employees at home - it is time-consuming and can meet employee resistance - but it is not unusual for a meeting to be held at the home of an employee who is a union sympathizer. The other employees can be invited to it. Again, if the employees reside on the employer's property this is not available in the same way - the union organizer does not have the opportunity to attend the meeting.

There are clearly important differences, then, between employees residing on the employer's premises and other employees. These differences do not achieve any statutory purpose. There is no reason apparent from the statute why employees who reside on their employer's property should, for that reason alone, have less access to information concerning collective bargaining. The choice of collective representation should be open to such persons in the same way it is available to the great majority of the work force who live away from their work site and travel to and from their job daily.

Section 4(2) is an attempt to recognize this imbalance by neutralizing to some extent the factor of separation. The Code recognizes that employees working on their employer's property should have access to information from trade union organizers in the same way as other employees have such access.

24While we find these comments illuminating with respect to the purpose of access orders, we are not convinced that they support the proposition that another test should be added to those criteria already set out in section 11 in Ontario. The B. C. Board approached the matter as one of striking a balance between section 4(1) and section 4(2), and appears to suggest that the latter represents the general thrust, if not a complete code, of access rights available in B.C. A different approach has evolved in Ontario where the Board has been prepared to facilitate access even in those cases beyond the ambit of section 11. In Adams Mine, Cliffs of Canada Limited [1982] OLRB Rep. Dec. 1767 and T. Eaton Company Limited [1985] OLRB Rep. June 941 the Board considered the question of access in the more general case of non-resident employees in the course of unfair labour practice complaints alleging interference with organizing activities. Thus, we do not read section 71, the corollary to section 4(1), as a restriction on section 11 in the same manner as the B.C. Board reads section 4(1) as limiting 4(2). Rather, the interests represented by section 71 are to be balanced with those set out in section 3 and the other provisions analyzed by the Board in the Adams Mine and T. Eaton Company cases, while section 11 addresses the more specific case of resident employees. As a result, the test posited in Rai Farms, that is, whether resident employees have less of an opportunity to be exposed to the union than non-resident employees has to some extent already been addressed by section 11. The Legislature has determined that they do, and as a result has made specific provision for them.

25The argument that the criteria for access orders should be more stringent where employees are already represented implies that freedom to choose a particular union is assigned less value under the Labour Relations Act than the right to join a union at all. We do not find this proposition supportable. Rather, we adopt the comments made by the Board in Domtar, supra:

9. There is nothing on the face of section 11 which suggests that it should not apply for "raids", in which one union is seeking to displace another. Quite the contrary. The Legislature has expressly contemplated the possibility of displacing an incumbent union, and has merely limited the time for doing so to the "open period" in the collective agreement. (See sections 5 and 61 of the Act.) Apart from that, it is left to the employees to determine whether they wish to be represented or by whom. There is no reason to limit the meaning of the term "trade union" in section 11 or to give it other than its ordinary meaning: any organization which meets the requirement of section l(1)(p) of the Act. The right to access is just as important in a raid situation as in the case of an unorganized group of employees - indeed, perhaps even more important because the incumbent will already have an established presence and access must be available so that a rival can orchestrate its organizing campaign to capitalize on the limited window of opportunity presented by the "open period". If another union seeks to present itself as a plausible alternative, it will require contact with the employees in order to make its case. Anything which delays or impedes access to the employees for the purpose of signing membership cards may limit their right to be represented by the union of their choice; and section 11 makes it abundantly clear that such contact should not be limited solely because the employer controls access to the premises on which the employees reside.

As a result, we are not prepared to formulate a different test under section 11 where employees are already represented.

26We conclude that the only criteria that the applicants must meet are those set out in the Act, that is, that employees must reside on property owned by or to which access is controlled by the employer, an interpretation we find consistent with both the wording and the purpose of this provision. We do not, however, accept the argument that access orders are automatically and inevitably forthcoming once those criteria are met. While it may be that the significance of access to collective bargaining suggests a general predisposition towards granting an order where those conditions are satisfied, the section is not mandatory and the Board retains a discretion to deal with the unusual case where access may be inappropriate.

27The respondent and the LSWU also argued that employees living in the camps from Monday to Friday did not "reside" there within the meaning of section 11. We find this unpersuasive. In our increasingly mobile society, what constitutes residence may vary considerably. It is not necessary for us to define the outer limits of "reside" as it is used in section 11, because we are satisfied that living on the employer's property five days a week is within those limits. As noted earlier, it was not disputed that the camps are owned by the respondent or that the respondent controls access to them.

28The respondent also argued that access should not be granted because the inter-union rivalry between the two applicants and the incumbent might lead to disruption and even violence. We find it inappropriate to conclude from the fact that three unions are involved that disruption will necessarily occur. We note that the applicants volunteered to subject themselves to the terms of access set out above which prohibit access during an employee's working hours and provide access on alternate days to each applicant. These are terms which appear to address the respondent's concerns in an eminently sensible fashion. The Board therefore found that the applicants were entitled to relief under section 11 and directed access as described above.