[1988] OLRB Rep. April 420
3520-87-M Labourers' International Union of North America, Local 493 and Sudbury Mine, Mill & Smelter Workers' Union, Local No. 598, Applicants v. Noramco Mining Corporation, Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members D. A. MacDonald and E. G. Theobald.
APPEARANCES: David Strang and Denis LaRocque for the applicants; John Little and Steve Mlot for the respondent.
DECISION OF THE BOARD; April 28, 1988
The name of the respondent is amended to read: "Noramco Mining Corporation".
This is an application under section 11 of the Labour Relations Act for a direction from the Board allowing representatives of the applicant’s access to the property of the employer on which the employees reside. Such access is for the purpose of attempting to persuade the employees to join a trade union.
In its reply the respondent indicated its objection to the Board granting such direction. It was the position of the respondent that the employees did not "reside" on the property of the employer, or on property to which the employer has the right to control access. In its reply, and at the hearing, the respondent further indicated that if the employees did "reside" on the employer's property, it disputed that this was an appropriate case for a direction. The respondent further desired to make representations with respect to the manner in which access ought to be exercised if the Board deemed it appropriate to make a direction.
On April 21, 1988, the Board gave the following oral decision:
The Board has carefully considered the able submissions of both counsel. In light of the agreed-upon facts of this case, the Board finds that the applicant has met the criteria set out in section 11. The Board however has discretion to deny access even where the section 11 criteria have been established. In the circumstances of this case, the Board is not persuaded that the direction for access ought not to be granted. This case is not so unusual as to persuade the Board to exercise its discretion to deny access. In light of the language and purpose of section 11, this is an appropriate case to direct the employer to allow access to representatives of the trade unions.
After giving its oral decision, the Board heard certain submissions with respect to the manner in which access ought to be exercised. The parties were able to reach agreement on certain matters relating to the manner of access but were unable to reach agreement on the scope of the direction allowing access and upon the duration of the direction granting access. In respect of the scope of the direction, it was the applicants' position that representatives of the trade union should be allowed access to the camp portion of the employer's property. Included in the area to which the applicants sought access is the recreation and lunch hall and areas which are colloquially referred to as the "bunkhouse" areas. The latter areas consist of a group of cabins and ATCO trailers. Counsel for the respondent on the other hand submitted that access ought to be restricted to an office which is adjacent to the security office situated near the gate which controls access to the mine and mill areas on the property. ln the alternative, counsel submitted that if access beyond this office was directed by the Board, access should nevertheless be restricted to only one of the two bunkhouse areas and to the recreation and lunch hall area which is frequented by all employees. Counsel argued that for security reasons, access should not be granted to the other bunkhouse area which is located in the gate-enclosed security area upon which the gold mine and mill itself are also situated.
In respect of the duration of the direction, counsel for the applicants submitted that the direction remain in effect until the terminal date fixed for any application for certification by the applicants with respect to employees of the respondent residing at the property. Counsel for the respondent submitted that the direction ought to expire after two weeks.
Having regard to the agreement of the parties, the Board directs as follows:
a) Before entering the property, representatives of the applicants will give notice to Mike Murak or his designate on or before the 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) Representatives of the applicants will obey normal camp rules and regulations and will check in at security when they arrive.
d) Access will be exercised by Bill Suppa, Denis LaRocque, Rolly Tessier and Rick Grimard or their designate provided that such designation is made in writing.
e) There will be no more than two (2) such representatives from each of the two (2) applicant unions on site at any one time. The parties are agreed that there will not be more than four (4) representatives on site at one any time.
f) The hours of access shall be from 2:00 p.m. to 10:00 p.m.
- In addition and after having heard and considered the submissions of the parties, the Board directs as follows:
g) Access to the respondent's property pursuant to this direction refers to access to those areas where employees reside, including the bunkhouse areas and the recreation and lunch hall area.
h) The right of access directed herein shall expire on April 21, 1989 or on the terminal date fixed for any application for certification by the applicants with respect to employees of the respondent residing at the property in question, whichever should first occur.
i) Access on the above terms will commence forthwith.
The parties have indicated that they do not require written reasons of the Board. We feel that it is appropriate to provide written reasons consistent with our oral decision at the hearing with respect to paragraph 8(g). As acknowledged by counsel for the applicants, access to the bunk-house areas does not entitle representatives of the applicant’s unlimited or unfettered access to that area. As was stated in Ledcore Industries Limited, [1987] OLRB Rep. Nov. 1399:
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....
[emphasis added]
In Madeleine Mines Ltd., [1987] OLRB Rep. Dec. 1574, the issue of access to bunkhouses was addressed by the Board. At paragraph 9 of the decision, the Board stated:
The 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 or 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.
The decision of the Board in Madeleine Mines commends itself to this Board.
- In this case, the respondent acknowledged that resident employees have access to each of the two bunkhouse areas notwithstanding the fact that one of these bunkhouse areas is located within the "secured" portion of the employer's property on which the mine and mill are located. Employees who reside in one bunkhouse area are not precluded from visiting employees residing in the other bunkhouse area. In those circumstances, the Board cannot find any compelling reason to restrict access to an area where employees normally reside.