[1994] OLRB Rep. October 1334
1533-94-U; 1729-94-U IWA-Canada, Local 1-2693 and Leo LaFleur, Applicants, v. Goulard Lumber (1971) Limited, Mark Goulard and Romeo Goulard, Responding Parties; IWA-Canada, Local 1-2693, Applicant v. Goulard Lumber (1971) Limited, Responding Party
BEFORE: Laura Trachuk, Vice-Chair, and Board Members W. A. Correll and H. Peacock.
APPEARANCES: James Fyshe and Claude Seguin for the applicants; K. R. Valin and Mark Goulard for the responding parties.
DECISION OF THE BOARD; October 20, 1994
1Board File No. 1533-94-U is an application under section 91 of the Labour Relations Act alleging that the responding parties violated sections 67 and 81 of the Act by failing to recall Leo LaFleur. During the course of the proceeding the applicant withdrew its allegation that the responding parties had violated section 67. Board File No. 1729-94-U is an application under section 91 alleging that the responding party violated section 73.1 of the Act by employing bargaining unit members and family members during a lawful strike.
2On August 23, 1994 the Board made the following oral ruling:
The Board has carefully considered the evidence and arguments presented by the parties. On the evidence presented, we do not find that the responding party has violated section 81 of the Act. We understand that the Applicant has withdrawn its allegation that the responding party has violated section 67. The application in File No. 1533-94-U is therefore dismissed.
The Board also finds that Mr. Leo LaFleur was not entitled to cast a ballot in the strike vote held by the applicant on July 21, 1994. As a result, the union does not have the support of 60% of those voting and the provisions of section 73.1(4)-(7) do not apply. The application in File No. 1729-94-U alleging a violation of section 73.1 is therefore dismissed.
The following are the reasons for the above ruling.
Facts
3The relevant facts in this matter are not in dispute. The responding party, Goulard Lumber (sometimes referred to in this decision as the "company") is a mill owned and operated by the Goulard family in Sturgeon Falls. The applicant (sometimes referred to in this decision as the "union") was certified to represent a bargaining unit of employees working in the company's sawmill, planing mill and mill yards on September 1, 1993. Students are excluded from the bargaining unit. The parties have not yet signed a first collective agreement. The union was on strike on August 22 and 23 when these matters were heard.
4Leo LaFleur worked as a labourer at the mill from September 13 to September 24 and from September 27 to October 8, 1993. He has not been offered any work at the mill since that time. He has inquired on a number of occasions as to whether there was more work available. He has been advised that the company does not know when there will be more work available, but that he will be employed if more is available, providing all those who have worked longer for the company have already been offered it. Mr. LaFleur's record of employment indicates that he was laid off and that his date of return is "unknown". At the time he was laid off he did not receive his vacation pay. It is the company's practice to pay vacation pay at the end of June. It will, however, pay vacation pay when an employee is laid off or released if the employee asks for it. It appeared from his testimony that Mr. LaFleur had assumed that he had received his vacation pay.
5Two other people, Henri Charette and Michel Gagnon, Worked for the company intermittently during 1993 for considerably longer periods of time than Mr. LaFleur. All three of them were laid off on the same day. None of them have been offered employment in 1994.
6Leo LaFleur's brother Ron, is on the union's bargaining committee and was a union organizer. At a negotiation meeting on June 6 the company was asked when Leo LaFleur would be "recalled". It did not reply. There was no evidence that any inquiries were ever made with respect to Mr. Charette or Mr. Gagnon.
7The company hired several students to work during the summer. One of the students, LeBlanc, had worked for the company for three or four summers. Students tend to do odd jobs around the operation and fill in at times for the regular employees. Marc Goulard testified that he tried to keep the students from "interfering" with regular employees. During the summer of 1994 Mr. LeBlanc performed the work of regular employees more often than he had in previous summers.
8The union posted notices at the workplace advising employees that a strike vote would be held on July 21. On the morning of July 21 Leo LaFleur went to the mill and asked Marcel Marcoux, one of the members of the union's bargaining committee, what his status was with respect to being a union member and being entitled to vote. Mr. Marcoux advised him that he did not know and that Mr. LaFleur should raise the question at the meeting that night.
9The strike vote was held on the evening of July 21. The union's business agent asked for two volunteers to scrutineer. The scrutineers provided the ballots and counted the vote. Members were provided with a separate table and ballot box to place their votes. Fourteen out of twenty-four, or 58% of the employees voted in favour of a strike.
10After the vote was announced, most of the people attending the meeting left although the meeting had not been formally adjourned. The union's representatives, Wilf McIntyre and Claude Seguin remained, as did Marcel Marcoux, Ron LaFleur, one of the scrutineers, two others and Leo LaFleur. Leo LaFleur then raised the issue of his status as a member of the bargaining unit and his entitlement to vote. After some discussion it was decided that he was entitled to vote if he had worked at the company after the union had been certified. LaFleur then marked a ballot which was sealed in an envelope pending evidence being submitted by him to the negotiating committee showing that he had worked after September 1, 1993. It was also decided that an application would be filed with the Board alleging that the company had violated the Labour Relations Act by failing to "recall" Mr. LaFleur.
11The next day Leo LaFleur gave copies of his record of employment to Mr. Marcoux and Ron LaFleur. A few days later, the seven people who had remained at the meeting after the strike vote met and opened the envelope. Mr. LaFleur's ballot was marked in favour of a strike. The union's representatives considered this to mean that 60% of the bargaining unit members supported a strike.
12On August 5 the union gave the company notice that it would be commencing a strike on August 8. It advised the company that it was prohibited from using replacement workers.
13The union went on strike on August 8. Approximately 12 bargaining unit employees were crossing the picket line. Twelve Goulard family members (brothers, brother-in-law, sons and daughters) besides Marc have also been working. The mill has been operating at approximately 50% capacity.
Submissions of the Parties
14The union withdrew its allegation that the company had violated section 67 of the Act at the conclusion of the evidence although it continued to allege that the company had violated the statutory freeze (section 81). The company denied that it had violated the freeze. It asserted that it was not a term or condition of Leo LaFleur's employment that he would be re-hired to work before any students were hired or that he would be re-hired before any students were given the work of bargaining unit employees. The company pointed out that the student, Mr. LeBlanc, had worked for three or four summers and therefore had considerably more ~' service'' and experience than Mr. LaFleur. It submitted that it was continuing business as before by hiring students and it agreed that if there is extra work at some point in the future, it will offer it to Mr. LaFleur after the two other "temporary" employees, Mr. Gagnon and Mr. Charette, have been hired or offered the work.
15The company also argued that the application was untimely and that it should have been filed when Mr. LaFleur was laid off in October 1993.
16The company submitted further that it had not violated section 73.1 of the Act because Leo LaFleur is not an employee in the bargaining unit and was not entitled to vote. Therefore, it was not subject to the restrictions in sections 73.1(4)-(6). In the alternative, the company argued that the vote should be disallowed because the union had violated section 74(4) of the Act since Mr. LaFleur's vote was not secret. It also claimed that LaFleur's vote should not be counted because he was persuaded to vote in favour of the strike by the promise that an application would be filed on his behalf with the Board.
17The company also argued that even if section 73.1 of the Act applies in this situation, there is nothing in the Act which prevents owners of a company and their sons and daughters from working during a strike and that such a restriction should not be read into the Act. It did not appear to be disputing that if the provisions of section 73.1 applied, it had violated the Act by continuing to employ the non-family bargaining unit members who had crossed the picket line. We were referred to the following decisions: Re: 401548 Ontario Ltd. and Retail Wholesale & Department Union, Local 448 1980 CanLII 1575 (ON HCJ), 28 O.R. 2nd 697; Manoir Hotel Limited (unreported decision of arbitrator Weatherill dated November 22, 1982); President Motor Hotel (unreported decision of arbitrator Davis dated December 21, 1982); The Canadian Red Cross Society Ontario Division, [1994] OLRB Rep. Jan. 34.
18The union argued that it was a term and condition of Leo LaFleur's employment that he had a right of recall and that he would be recalled prior to any students being hired or at least before any students were assigned bargaining unit work. It argued that that was business as usual and what would reasonably be expected by the employees. By failing to recall him before hiring Mr. LeBlanc the company had violated section 81 of the Act. We were referred to the following decision: Oakville Lifecare Centre, [1993] OLRB Rep. Oct. 980.
19The union argued that Leo LaFleur was entitled to cast a ballot in the strike vote because he was an employee in the bargaining unit who had been laid off and had a right of recall. It was submitted that the Board's jurisprudence with respect to who is entitled to vote in representation votes would not necessarily apply in this situation because the legislature did not intend to interfere in internal union affairs in conducting a strike vote but intended only to ensure that it is conducted fairly. The union suggested that the appropriate test which should be used to determine whether someone is an employee with a right to participate in a strike vote under section 74(5) is whether or not the person in question has a "sufficient and continuing interest in the dispute between the parties". We were referred to a decision of this Board with respect to final offer votes: Wilf McIntyre, [1990] OLRB Rep. Oct. 1052 and two decisions of the B.C. Labour Relations Board; West Langley Forest Products Ltd. (unreported dated April 18, 1985) and Citation Industries Ltd., 4 CLRBR (2d) 123. The union argued that Mr. LaFleur had a sufficient and continuing interest in the dispute as he was an employee on lay-off with a right of recall or at least an interest in any recall rights which might be included in the collective agreement. We were referred to section 74(6) of the Act which, it was submitted, illustrates the intention that the legislation be broadly applied.
20The union argued that section 74(4) which requires that strike votes be taken by way of secret ballot must be read in conjunction with sections 74(5) and (6) which provide that all employees shall be entitled to participate in a strike vote. In these circumstances, a balancing is required and Mr. LaFleur's right to vote should take precedence over the requirement that his ballot be cast in secrecy. The union pointed out that Mr. LaFleur was not concerned that everyone knew how he had voted and that he had not been intimidated. It was submitted that the way in which the vote was otherwise conducted at the meeting met the requirement for secrecy. We were referred to the following decisions: Toromont, a division of Toromont Industries Ltd. (decision of the Board dated August 9, 1994, as yet unreported) [now reported at [1994] OLRB Rep. Aug. 1149]; Mollenhauer Limited, [1989] OLRB Rep. Oct. 1050; City Plumbing, [1987] OLRB Rep. June 810.
21The union argued that the language of section 73(5) clearly restricts the use of family members in these circumstances as they were hired or engaged subsequent to the notice to bargain being given. The brother who was already employed at the company was prohibited from working by section 73.1(4). The union claimed that the company had violated section 73.1(7) as Mr. Goulard was encouraging employees to cross the picket line.
Decision
22The relevant sections of the Act provide as follows:
81.-(1) Where notice has been given under section 14 or section 54 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,
(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,
(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or
(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to
appoint a conciliation board,
as the case may be; or
(b) until the right of the trade union to represent the employees has been terminated. whichever occurs first.
(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 14, in which case subsection (1) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.
(3) Where notice has been given under section 54 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (1) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 45 applies with necessary.modifications thereto.
73.1-(l) In this section,
"employer" means the employer whose employees are locked out or are on strike and includes an employers' organization or person acting on behalf of either of them; ("employeur")
"person" includes,
(a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and
(b) an independent contractor; ("personnel")
"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinarily perform their work. ("lieu d'exploitation a l'egard duquel la greve ou le lock-out a lieu")
(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:
A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.
The strike vote was conducted in accordance with subsections 74(4) to (6).
At least 60 percent of those voting authorized the strike.
(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,
(a) locked out if any employees in the bargaining unit are locked out; and
(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.
(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.
(5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:
A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.
The work of an employee in the bargaining unit that is on strike or is locked out.
The work ordinarily done by a person who is performing the work of an employee described in paragraph 2.
(6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lockout is taking place:
An employee or other person, whether paid or not, who ordinarily works at another of the employer's places of operations, other than a person who exercises managerial functions.
A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place.
An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.
A person, whether paid or not, other than an employee of the employer or a person described in subsection 1(3).
A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer.
(7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the agreement of the employee.
(8) No employer shall,
(a) refuse to employ or continue to employ a person;
(b) threaten to dismiss a person or otherwise threaten a person;
(c) discriminate against a person in regard.to employment or a term or condition of employment; or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of the person's refusal to perform any or all the work of an employee in the bargaining unit that is on strike or is locked out.
(9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer.
74.-(1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.
(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,
(a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties the report of a conciliation board or mediator; or
(b) fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.
(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.
(4) A strike vote or a vote to ratify a proposed collective agreement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.
(5) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.
(6) Any vote mentioned in subsection (4) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots.
23The provisions of section 81 are commonly referred to as the "statutory freeze". In situations in which it may not be clear what the "rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, trade union or employees" are, the Board considers what the employer's "business as before" was and what "the reasonable expectations of employees" would be in the circumstances. (See Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859 and Simpsons Limited, [1985] OLRB Rep. Apr. 594.) In situations such as this where there has never been a collective agreement delineating the terms and conditions of employment the Board considers the event alleged to be a breach of the section in light of any history of events between the employer and the employees which might be related. (See Royalguard Vinyl Co.,[1994] OLRB Rep. Jan. 59.)
24The union claims that the company's past practice establishes that it was a term of Leo LaFleur's employment that he would be recalled to work before any students were hired or assigned the work of regular (bargaining unit) employees. However, the evidence simply does not support such a claim. The company's past practice has been to hire summer students and for them to perform the work of regular employees from time to time. There is absolutely no evidence that it was the company's practice to call in the people it uses occasionally for extra work, that is, Charette and Gagnon, before assigning the students to do the work normally performed by regular employees. Such a practice would not make sense. If the students are already at work, available, and on the payroll, why would the company hire or call in extra people to fill in? The evidence established that Charette and Gagnon were used by the employer occasionally when it had extra work and therefore needed more people and that they were laid off as soon as that work was finished. It is the company's practice to call Charette before Gagnon because he worked at the company before Gagnon. Last September the company had so much extra work that it needed to call in a third person and it hired Leo LaFleur. It appears that if there is extra work in the future, the company is willing to hire Leo LaFleur again after first hiring Charette and Gagnon. However, the use of these extra workers has no relationship to the company's use of students. There is no past practice of giving priority to these extra workers over the students. By hiring students but not hiring Leo LaFleur, the company was carrying on business as before and doing exactly what employees would reasonably expect. Employees would not expect the company to lay off a student who had worked for it for the last four summers in order to hire someone who had worked for it for three weeks almost a year ago in the absence of established contractual recall rights. For these reasons, we dismissed the application alleging a violation of section 81 of the Act. In view of our decision to dismiss this application it was unnecessary to decide whether it should be dismissed for delay.
25A union must conduct a strike vote in accordance with sections 74(4)(5) and (6) and have the support of 60% of those voting in order to avail itself of the provisions of section 73.1(4)-(8). In this case both parties appeared to agree that Mr. LaFleur would only be entitled to vote if he was an employee in the bargaining unit. No evidence or argument was presented with respect to the union's practice in other voting situations. There was no reference to the union's constitution. The union claims that Leo LaFleur is an employee in the bargaining unit and therefore entitled to participate in the strike vote because he has a right of recall. If Mr. LaFleur is found to be an employee in the bargaining unit, the union has the bargaining unit support that it requires. The company denies that he is an employee.
26This appears to be the first time the Board has considered the question of who is an employee in the bargaining unit entitled to participate in a strike vote under section 74(5). However, there are many other provisions in the Act which refer to votes or require a quantification of the level of employee support for the union. Sections 8(2)(3) and 9 of the Act provide for certification votes and state that a vote may be taken if more than 40% or 55% respectively "of the employees in the bargaining unit" are or have applied to become members of the bargaining unit. Section 39 provides that the Minister may order that "employees in the affected bargaining unit" vote to accept or reject the employer's last offer. Section 40(1) provides that the employer may request the Minister to order a vote of "employees in the affected bargaining unit" on its last offer. Section 58(3) provides that a "representation" vote be held if more that 45% of the "employees in the bargaining unit at the time the application was made" have signified that they no longer wish to be represented by the trade union. Section 62(2) provides that the Board may hold representation votes before issuing a declaration in a trade union successorship application. Section 64(8) provides that the Board may hold representation votes before disposing of an employer successorship application. Section 93(19) provides that the Board may order a "representation vote" before it disposes of an application in a jurisdictional dispute.
27The Act does not describe who an "employee" is for the purposes of these sections but the Board has had to make that determination on a number of occasions. In Sidbrook Private Hospital, [1991] OLRB Rep. March 397, the Board found that ballots cast by employees who had been discharged and had grieved in a termination application must be sealed until the grievance concluded whether or not they had been discharged for just cause. The Board reached its decision on the basis that "those employees who continued to have a legitimate interest and connection to the bargaining unit" should be entitled to vote even if they were not at work on the date the vote was held. The Board has not permitted an employee who was retiring but was using up her vacation entitlement and sick pay credits first to participate in a termination vote. (See Strathroy Nursing Homes Limited, [1987] OLRB Rep. Dec. 1606.) In Wilf McIntyre, supra, the Board did not permit an employee off work on workers compensation who was not expected to return to the workplace to participate in a final offer vote because it was "satisfied that McLean had no real connection with the workplace either at the time the strike began or on the day the vote was conducted and was therefore not an employee in the bargaining unit for the purposes of the vote held under section 40 herein.”
28While this Board has never specifically articulated a "test" which can be applied to every vote situation to determine whether an individual is an employee at the relevant time and therefore entitled to vote, its general approach has been uniform. The Board considers whether the interest of the person participating in the decision being made by way of the vote is significant enough to justify affecting the outcome of the vote for the employees whose entitlement to participate is not in question.
29The Board found that in these circumstances, Leo LaFleur was not entitled to participate in the strike vote. His only interest in the potential collective agreement is dependent on what can only be described as the "possibility" that he might be employed by Goulard Lumber in the future. This tangential interest does not justify Mr. LaFleur being in a position to affect the decision being made by employees by way of a vote. Mr. LaFleur does not have a "real connection" to the workplace, nor does he have a "sufficiently substantial employment attachment", nor does he "continue to have a legitimate interest and connection to the bargaining unit". He has no interest in the strike itself as he is not currently employed and has no rights of recall. For these reasons, the Board held that Leo LaFleur was not entitled to participate in the strike vote and dismissed the application under section 73.1.
30As the Board ruled that the applicant did not have the support of 60% of those entitled to vote for the strike, the provisions of 73.1(4)-(7) did not apply and it was unnecessary to determine whether employing family members or encouraging people to cross the picket line were violations of section 73. It was also unnecessary to determine whether the method in which Leo LaFleur's ballot was cast was a violation of section 74(4).