[1987] OLRB Rep. November 1399
2051-87-M International Union of Operating Engineers, Local 793, Applicant v. Ledcore Industries Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.
APPEARANCES: Murray Gold and Pat Maley for the applicant; Robeh Statton, Geoff Akehurst and Ron Stevenson for the respondent.
DECISION OF THE BOARD (delivered orally November 20, 1987); November 24, 1987
This is an application under section 11 of the Labour Relations Act for a direction giving the applicant access to property described in the application as "(M.T.C. Contract 87 - 452) Bending Lake Road from 19.6 kilometres south of Highway 17, southerly for 11.3 kilometres, District of Kenora." Section 11 of the Act provides:
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.
It is conceded that employees of the respondent reside on the subject property and that the respondent has the right to control access to that property. It should be noted that the site can only be reached by land over a road controlled by another company. It is understood that this application does not affect that company's rights. The respondent does not oppose our granting some direction. The parties' dispute is over the terms of the direction.
- The applicant does not dispute the Board's jurisdiction to include limiting terms in a direction under section 11. It agrees to terms similar to those contained in the Board's decision in Great Lakes Forest Products Ltd., [1987k OLRB Rep. Sept. 1136, with the necessary changes. Those terms would be:
(a) before attempting to enter the camp, the applicant shall notify Jack Cameron or Geoff Akehurst or their designate not later than the close of business on the last business day prior to the day 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 the applicant will obey all camp rules and regulations by which employees' conduct is governed including those relating to the use of safety equipment.
(d) At the time of entering the camp the union representative(s) must notify the camp attendant or his designated representative if he or she is reasonably available.
- The respondent says that the direction should be on the following terms:
(1) Access restricted to the entire mess hall building.
(2) Access would take place without interference, surveillance, or presence by management.
(3) Access would be for any two of E. Kaplanis, P. Maley or B. Madigan.
(4) The applicant to give 24 hours notice to either Jack Cameron or Geoff Akehurst.
(5) Respondent to post a notice setting out the time and date of access meeting prepared by the applicant.
(6) The applicant shall be allowed access for one and one-half hours at 3:00 p.m. and 8:00 p.m. one day a week for four consecutive weeks and such period of access to expire on or before January 31, 1988 in any event.
(7) The applicant to have the use of the telephone room in the mess hall for private meetings with the employees.
(8) The applicant to have no access whatsoever to the bunk houses of the employees.
There is some disagreement about the facts. For example, the employer says that there are about 30 employees at the subject property while the union says that there are 40. These and other differences are not material to our disposition of this application.
Respondent counsel argues that the terms granted in the Great Lakes case must have been agreed to, as there is no explanation in that decision of how those terms were arrived at. Counsel for the respondent cites Smith's Construction Company Arnprior Limited, [1973] OLRB Rep. Aug. 428; Selco Mining Corporation Limited, [1974] OLRB Rep. Nov. 818; Ledcore Construction Limited (1985), 85 CLLC ¶16,055; and Consolidated Canadian Farraday Limited, [1974] OLRB Rep. Jan. 5 as decisions granting access on terms as restrictive as its proposed terms, at least with respect to frequency and duration of visits and the term during which the order would be operative. We note that the three Ontario Board decisions contain no more analysis of the terms imposed than does the decision in the Great Lakes case. The Ledcore decision from British Columbia explicitly notes that the terms imposed are those that were proposed by the union applicant in that case.
Counsel for the applicant points to a number of more recent decisions incorporating agreed-upon terms: Teck Corporation, (Board File 2828-83-M, unreported decision dated April 2, 1984); Noranda Mines Limited, (Board File Nos. 1085-83-M, 1100-83-M and 1306-83-M, unreported decision dated October 3, 1983); Noranda Mines Limited, (File 1570-83-M, unreported decision dated November 16, 1983); Campbell Red Lake Mines Limited, (unreported decision dated March 30, 1982) and Gaston H. Poulin Contractor Limited, [1987] OLRB Rep. Jan. 48. These are offered as evidence of what is reasonable in terms of protecting any legitimate employer interest. We have no way of assessing the differences, if any, between the interests of those employers and the interests of the respondent in this case. Moreover, it is not apparent why the passage of time would have made these decisions any more representative of what is reasonable than are the decisions cited by the respondent.
None of the cases cited deals with the matter of access to the bunk house. The respondent says each bunk house consists of a series of rooms adjoining a common hallway. Two persons reside in each room. Generally one is a day shift employee and the other works on the night shift. There are also bunk houses in which employees of the Ministry of Transportation and Communication reside; sometimes a bunk house may contain both employees of the respondent and employees of the MTC. Bunk house rooms are locked. Only the occupants of a room have unrestricted access to it. While a member of management could enter the bunk house hallway and knock on a door, he or she could not enter a room except on the invitation of an occupant. Presumably the two occupants work out between themselves what authority either has to admit visitors in the absence of the other.
The respondent argues that access should not be granted to bunk houses because that would infringe on rights of employees living there, employees who have had no notice that these rights were in jeopardy in this application. The respondent also argues that organizing is better conducted in the mess hall than in bunk houses where walls are paper thin and the total absence of management personnel cannot be guaranteed.
The purpose of section 11 was addressed in Domtar Inc., [1987] OLRB Rep. April 485, at paragraphs 8 and 9:
The freedom to join a trade union (or, as in this case, change unions) may be seriously impeded where the employees not only work but also reside on the property of their employer. In those circumstances, absent a direction of the kind envisaged by section 11, the employer would have the right to control access to the employees even on non-working time. Any union organizer who entered onto the employer's property without permission would run the risk of being charged with trespass (see R. v. Labelle (1965), 1964 CanLII 608 (ON CA), 48 D.L.R. (2d) 37, 65 CLLC ¶14.056). But in a system based upon membership cards signed by the employees, such contact is imperative if a certification application is to be successfully launched. That is why what is now section 11 of the Act was added in 1970 to remove this impediment. To this extent, a Board direction under section 11 does limit or modify the employer's pre-existing property rights.
... 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.
In Domtar an argument was made that an access order would interfere with the rights of an incumbent trade union. In addressing this argument the Board made these observations in paragraph 10:
Obviously any direction to the company granting access to its property will have an incidental tactical effect on Local 2693. However we are not persuaded that the incumbent's legal rights as opposed to those of the company would be affected in any way. The CPU is not seeking here anything significantly different from the direction already granted in the case involving Abitibi-Price. The CPU merely wants a better opportunity to speak to Domtar's employees. Local 2693 remains the employees' bargaining agent with all rights, privileges and duties associated with that status. Local 2693 continues to have any rights accorded it under the collective agreement. Its rights under the Act are not impeded in any way. Should a certification application be made, it would have the right to intervene in opposition and if a representation vote were held, it would appear on the ballot. Nothing in a Board direction granting access to representatives of the CPU (typically on terms such as that they give the employer notice in advance, abide by any camp safety rules, etc.) would restrict an incumbent's right to campaign. Nothing in a Board direction would alter the incumbent's pre-existing right to communicate with its members. And nothing in such Board direction to the employer would impinge upon the rights of the incumbent's members. The only effect on them and again it is incidental is that they may be more exposed for a time to a certain amount of salesmanship which they are quite capable of assessing and rejecting if that is their wish.
[emphasis added]
- A section 11 direction interferes with an employer's right to restrict access to property over which the employer has control. Subject to the terms of the direction, the employer is prevented from denying access to the union's representative. Employees, however, are not prevented from denying access to their private rooms. They are not obliged to speak with the union representative. They are not obliged to go to any meeting. Union representatives are simply put in the same position as any resident employee, so that opportunities for communication are not limited by the assertion of employer property rights any more than would be the opportunities for communication between resident employees. The respondent has not identified any legitimate interest it may have as employer or in relation to the property which would not be adequately served by the terms proposed by the applicant plus the following:
(e) Access on any given day shall be by no more than 3 of E. Kaplanis, P. Maley, B. Madigan and/or any person or persons bearing the written authorization of one of the foregoing.
(f) Access shall occur between the hours of 9:00 a.m. and 10:00 p.m.
(g) This order shall expire on the terminal date fixed for any application for certification by the applicant with respect to employees of the respondent residing at the property in question.
We hereby direct that the respondent grant the applicant access on those terms.