International Union of Operating Engineers, Local 793 v. Madeleine Mines Ltd., 1987 CanLII 3151

Ontario Labour Relations Board

[1987] OLRB Rep. December 1574

2050-87-R International Union of Operating Engineers, Local 793, Applicant v. Madeleine Mines Ltd., Respondent

BEFORE: Owen V. Gray, Vice-Chain, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: Jack J. Slaughter and Patrick Maley for the applicant; Daniel Vukovich for the respondent.

DECISION OF THE BOARD; December 14, 1987

Reasons for Decision

1This 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

Madeleine Mines Site, approximately 65 miles north of Hwy. 17, and 7 miles West of Spruce Riven Road, District of Thunder Bay.

Section 11 of the Act provides:

11. 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.

2The respondent does not oppose our granting some direction. The panties agreed to the following terms of access:

1. Two authorized representatives of the International Union of Operating Engineers, Local 793 (the "Union") shall be entitled to access to the project on the terms and conditions described he rein.

2. The two authorized representatives of the Union shall be allowed access to the project from 6 p.m. to 11 p.m. on a 7 days per week basis, provided that 48 hours notice shall be given to the Company by any means of telecommunications to its Toronto office to the attention of Mr. Daniel Vukovich. There shall be 48 hours notice for each visit and the parties agree "visit" to mean a number of consecutive days not to exceed 5.

3. In terms of facilities, the two authorized union representatives shall be allowed access to the recreation area, and mess hall, and agree to obey all camp rules and regulations.

4. In terms of time of access, the two authorized union representatives shall have immediate access to the project via helicopter or by the timber road lying to the west of the property. The two authorized union representatives shall have access to the project effective December 12, 1987 via the road running westerly off Spruce River Road to the project subject to the Union representatives executing a waiver of liability applicable to the road running westerly off Spruce River Road to the project only, said waiver to contain such reasonable terms consonant with industry practice. It is agreed that the Company does not control access to the timber road lying to the west of the property.

5. The two authorized union representatives undertake not to disrupt or interfere with employ­ees or with work in progress on the road running westerly off Spruce River Road to the project or on the property to which the Company has the right to control access, and to abide by all applicable safety and security regulations.

When the matter came on for hearing on November 20, 1987, the respondent was seeking two additional limitations on access:

1. That access be restricted to a period of 30 days.

2. That access be confined to the mess hall and all recreational facilities and not extend to the bunkhouses.

The applicant would agree that the order have a one-year term but pressed for access to bunk­houses. After hearing the respondent's submissions in support of these restrictions, we ruled orally that the applicant would have access to the bunkhouses; that the access order would have effect for a term of one year from that day (November 20, 1987) and that the respondent was directed to forthwith grant the applicant access to the subject property on these and the agreed terms. We now set out our reasons for that ruling.

3The purpose of section 11 was addressed in Domtar Inc., [1987] OLRB Rep. April 485, at paragraphs 8 and 9:

8. 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.

9. ... 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.

4The only prerequisite to the granting of an access order under section 11 is the one articulated in the section: there must be employees who "reside" on "property of the employer" or on "property to which the employer has the right to control access" (see, generally, Great Lakes Forest Products Ltd., [1987] OLRB Rep. Sept. 1136). It seems it has always been assumed, as the parties to this application did, that the Board's jurisdiction to direct that access be given includes jurisdiction to define the times at which, terms on which and persons through whom an applicant trade union may have access to the property on which employees reside. These are matters on which applicants and respondents have generally agreed. As a result, the Board has not had much occasion to comment on the principles which ought to be applied in determining the terms on which access is granted.

5The matter of terms of access was addressed in Campbell Red Lake Mines Limited, [1983] OLRB Rep. May 623, where the Board considered whether concern about possible violence warranted denial of or restrictions on the right of access:

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 too 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.

6In Gaston H. Poulin Contractor Limited, [1987] OLRB Rep. Jan. 48, the applicant agreed that its representatives would abide by all security and safety regulations on the property, but resisted a requirement that they sign a "waiver of liability" with respect to any injury or loss which they might incur while on the site. The Board declined to impose that term:

7. 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.

7Ledcore Industries Limited (Board File No. 2051-87-M) was an application for access heard by this panel on the same day as this application. There, the respondent asked that the appli­cant be denied access to bunkhouses. The respondent's argument and our response to it are reflected in the following paragraphs of the decision we delivered orally at the conclusion of the hearing in that matter:

7. 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.

8. 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 think and the total absence of management personnel cannot be guaranteed.

9. 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 [certain additional terms which made no distinction between the bunk houses and the rest of the property].

8Counsel for the respondent in this application was present when we delivered our deci­sion in Ledcore. He was asked how the circumstances of this case or his argument for denial of access to bunkhouses was distinguishable from the circumstances and argument in Ledcore. He said the only different factor was the respondent's concern that fights might break out in the bunk­houses as a result of union representatives knocking on doors. He said this concern was based on experiences the employer had had at other camps. He said management could deal with violence if it broke out in the mess hall, but not if it broke out in the bunkhouses. He added, however, that the respondent had no objection to a union representative's entering the bunk house to visit an employee at the invitation of the employee as a result of some discussion in the mess hall or recrea­tional facilities.

9The property to which section 11 contemplates a direction granting access is the prop­erty on which employees "reside." While this "employee residence" characteristic may not attach to all of the property owned on controlled by the employer, it must surely attach most strongly to the bunkhouse. That is, therefore, the part of the property to which the Board is least likely to restrict access. We certainly would not do so unless there were a compelling reason. The mere pos­sibility of violence is not a compelling reason.

10The respondent argued that there should be a limit on the duration of the order because the property might be occupied for some time if its current explorations result in the establishment of a mine.

11Nothing in section 11 suggests that a direction thereunder should have a limited term. Once it is accepted that the granting of a direction is a matter of discretion even when the precon­ditions therefor are met (see Great Lakes Forest Products Ltd., supra, at paragraph 26) and that some terms limiting access can be imposed, it may then be said that there should be some mecha­nism by which changes in circumstances can be taken into account. One way to do that would be to give any direction limited duration, so that circumstances must be reevaluated in a fresh applica­tion if the union desires continued access after the initial period. Of course, the Board has the power under subsection 106(1) to reconsider and vary any previous order. Thus, an access direc­tion of unlimited duration is not immutable. The applicant's agreement to a one-year limit (without prejudice to its night to apply for a further direction covering the subsequent period) made it unnecessary for us to resolve the balance of administrative convenience between time-limited directions which may have to be renewed and unlimited directions which may have to be reconsid­ered. We did not see in this case any interest of the respondent as employer on in relations to the property which warranted giving our direction more limited duration than one year.