Canadian Paperworkers Union v. Domtar Inc., 1987 CanLII 3242

[1987] OLRB Rep. April 485

3347-86-M Canadian Paperworkers Union, Applicant v. Domtar Inc., Respondent

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members G. O. Shamanski and H. Pea­ock.

APPEARANCES: Brian Switzman, Cecil Makowski and Elvan Bishop for the applicant; H. R. 9yer, Dexter Adams and Louis Joubert for the respondent; L. C. Arnold and Eric Hautella for Lumber and Sawmill Workers Union Local 2693.

DECISION OF THE BOARD; April 9, 1987

I

I. This is an application under section 11 of the Labour Relations Act. It is one of two similar applications which came before the Board for hearing on April 6, 1987. (The other is Board File No. 3348-86-M, involving Abitibi-Price Inc.). In each case the Canadian Paperworkers Union ("CPU") seeks a direction from the Board allowing access to the employer's property for the pur­pose of attempting to persuade its employees to join the CPU. In each case, Lumber and Sawmill Workers Union Local 2693 ("Local 2693") sought to intervene for the purpose of opposing the access order. In the Abitibi-Price case, the employer was content to grant access so long as the CPU representatives advised the company in advance of their intended visit and abided by the posted safety rules. In that application only Local 2693 was opposed to the access order sought. In ~he Domtar Inc. application, both Domtar and Local 2693 have indicated that they intend to oppose any access order. They say, such order is unnecessary. Section 11 reads 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.

2. In this decision we propose to deal with only two issues:

(1) whether the Domtar case should be adjourned until April 13, 1987 for a consideration on the merits;

(2) whether Local 2693 has the status to intervene in either proceeding.

3. The first question in our view is relatively easy. We were advised that there was cur­rently pending before the Board another application for access made by the International Wood-workers of America ("IWA") which is scheduled for hearing before the Board on April 13, 1987. It appears that the IWA is another rival suitor seeking to displace the incumbent Local 2693. Dom­tar reserved its position with respect to the actual necessity of any access order, but argued that if two "raiding unions" were both seeking access, on terms, the two applications should be heard together to avoid any possibility of inconsistent results.

4. We are inclined to agree with Domtar's assessment of the situation - particularly where, as here, the delay involved amounts to only one week. Counsel for Domtar assured the Board that the critical facts in the case were not really in dispute. The problem, he agreed, was the inference to be drawn from those facts and whether an access order should be granted. In his submission, the matter could be comfortably concluded on April 13, 1987, so there was little or no prejudice to the CPU. In our opinion, in the circumstances, the CPU and IWA applications really should be heard together. Accordingly, this application will be adjourned to April 13, 1987.

5. Local 2693's request to intervene is a separate issue to which we now turn.

6. As we have already noted, Local 2693 is the current bargaining agent for the employees whom the CPU seeks to organize and is a party to a collective agreement with Domtar which expires on August 31, 1987. Local 2693 argues that section 11 was not intended to facilitate "raids", and since any access order would necessarily assist the CPU in its efforts to organize employees currently represented by Local 2693, the latter union has a right to intervene to oppose the granting of such order. Counsel submits that even if an order were to be granted, he would have submissions to make about its form and the posting requirements, lest the CPU be given "un­fair advantage" in the coming contest. Counsel expressed concern that any access order granted by the Board could be misconstrued or misrepresented as the Board's endorsement of the CPU's organizing campaign. This argument is plausible and attractive but, on balance, we do not think it should prevail.

II

7. 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.

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. However, that does not mean that it infringes upon any legal right or interest of an incumbent trade union.

9. There is nothing on the face of section 11 which suggests that it should not apply to "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(l)(p) of the Act. The right of 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.

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 to 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. We simply fail to see how the concerns articulated by Local 2693 amount to a legal foundation for intervention, even if it has an "interest" in a general sense.

11. 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.

12. The merits of the CPU's application will be considered on April 13, 1987.