Service Employees International Union, Local 204 and Local 532 v. The Canadian Red Cross Society Ontario Division, 1994 CanLII 9810

[1994] OLRB Rep. January 34

3767-92-U Service Employees International Union, Local 204 and Local 532, Applicants v. The Canadian Red Cross Society Ontario Division, Victorian Order of Nurses Brant-Haldimand-Norfolk, Comcare (Canada) Limited, Med Care Part­nership, The Visiting Homemakers Association of Hamilton-Wentworth, Hamilton-Wentworth Home Care Program - Victorian Order of Nurses and Victorian Order of Nurses Respite Program, The Regional Municipality of Hamilton­Wentworth, Olsten Health Care Services, Medical Personnel Pool (Hamilton) Ltd., Mohawk Medical Services, Para-Med Health Services and Brant County Home Care Program, Veterans Affairs Canada, Responding Parties

BEFORE: Judith McCormack, Chair, and Board Members D. A. MacDonald and B. L. Arm­strong.

APPEARANCES: Mary Cornish, Sean Fitzpatrick, Cindy Wilkey, Boris Ulehla, Doug Anderson, Richard Zawislak, Debbie Murray and Linda Micks for the applicants; Tim Liznick, Janice Baker, Robert Little, Barbara Trahan, Geoff Graham, Barb Heatherington and Helen Fleischman for The Canadian Red Cross Society Ontario Division; Gordon Weir for Victorian Order of Nurses Brant­Haldimand-Norfolk Branch; Robert Calder, Lisa Hamilton and Lewis Nickerson for Comcare (Canada) Limited; Maryann Crnekovic and Charles Humphrey for Med Care Partnership; Barbara Carson for The Visiting Homemakers Association of Hamilton-Wentworth; Brian Lawson for Hamilton-Wentworth Home Care Program - Victorian Order of Nurses and Victorian Order of Nurses Respite Program; David Beck for The Regional Municipality of Hamilton-Wentworth; Jane Richardson, Michelle Gage and Anne Hardy for Olsten Health Care Services; Larry G. Culver, Larry Kielbowich and Tom Dixon for Medical Personnel Pool (Hamilton) Ltd.; Gordon Weir for Victorian Order of Nurses Brant-Haldimand-Norfolk Branch; no one appearing for the Veterans Affairs Canada; John D. Lewis, Donald B. Jarvis and Sue McGregor for Mohawk Medical Ser­vices; Jennifer Barnes and Mel Rhinelander for Para-Med Health Services; Margaret Scott and Paul Stillman for Brant County Home Care Program.

DECISION OF THE BOARD; January 10, 1994

I. FACTS

1. This is an application under section 91 of the Labour Relations Act alleging that the responding parties have violated sections 5, 73.1, 73.2, 65, 67 and 71 in circumstances which are said to involve the use of replacement workers. The responding parties take the position that they have not violated any of these provisions. The applicants have requested various forms of relief including among other things a declaration, a cease-and-desist order, damages, and a posting. In light of the reverse onus in section 73.1(9), The Canadian Red Cross Society ("Red Cross") and eleven other responding parties who appeared at the hearing proceeded first. The other respond­ing party did not appear.

2. Although the Board heard extensive evidence in this matter, ultimately it became apparent that there was not much dispute about most of the salient facts. The case before us relates to a branch of the health care sector which provides a variety of therapeutic and support services to clients in their homes. The impetus behind the development of these services is the belief that this method of service delivery is both more beneficial to the clients and less expensive than many alternatives. Some of these clients have recently been discharged from hospitals and need various kinds of rehabilitative or palliative care. For others, the care helps to delay their entry into an insti­tution such as a nursing home. The services provided include nursing, occupational and physiother­apy, and homemaking. The latter involves services such as personal care, laundry, cooking meals, shopping and banking. This case involves a strike by employees of Red Cross who provide home­making services.

3. Financing for this program is granted by both the Ministry of Health and the Ministry of Community and Social Services. Funds are given to certain types of agencies which the parties referred to as "Home Cares". In this case, the relevant Home Cares are Brant County Home Care Program ("Brant Home Care") Hamilton-Wentworth Home Care Program-Victorian Order of Nurses ("HW Home Care") and the Regional Municipality of Hamilton-Wentworth Support Ser­vices ("The Region"). These agencies accept clients who require home care services, and then con­tract out to another set of agencies whose employees actually provide that care. The latter agencies are called "service providers" by the parties, and include two branches of the Red Cross which employ the homemakers in question. Service providers bill the Home Cares on a regular basis and the fees paid as a result are regulated by the Ministry of Health.

4. Both Brant Home Care and HW Home Care operate in a similar manner, while the Region has a slightly different system. Brant Home Care and 14W Home Care accept clients from a number of sources who require a variety of therapeutic and support services. These include cli­ents characterized as acute or chronic, and those who are physically disabled or the frail elderly. They are then assessed by case managers employed by the Home Cares, who arrange for the appropriate services to be provided by one of the service providers with whom they contract. The Home Cares' case managers continue to be involved with the clients to some extent, reassessing them on a regular basis.

5. In the case of Brant Home Care, homemaking services were contracted out to the Brantford branch of Red Cross, and two other service providers prior to the strike. However, Red Cross received 98% of the client referrals as a result of a Ministry of Health policy which gives pri­ority to not-for-profit service providers, and a preference by the Board of Health which adminis­ters Brant Home Care to use local agencies. The other two service providers prior to the strike were for-profit companies which were used only if a client was already using a particular agency by virtue of his or her insurance, or if Red Cross did not have a homemaker available to handle the referral. As of January 1st, 1993, the Brantford branch of Red Cross was providing services to approximately 1200 clients referred by Brant Home Care.

6. The contract between Brant Home Care and Red Cross contains the following provi­sions:

1.2 Home Care reserves the right to designate the individuals to receive services. The Society shall have the discretion to refuse to render services to a particular individual in the event that the Society is unable to obtain the services of a homemaker for that particular person. In the event that the Society is unable to render services requested or cannot commence such services on the day or days requested then this fact shall be communicated forthwith to Home Care by the Society.

1.3 In the event that the Society is unable or unwilling to provide homemaker services to a per­son or persons then Home Care reserves the right to service such individuals by alternate means.

4. NON-EXCLUSIVITY

The Society acknowledges that Home Care has entered into agreements similar to the within Agreement with other providers of Homemaker Services and that Home Care is under no obli­gation whatsoever to provide to the Society any minimum or guaranteed amount of Homemaker services during the term of this Agreement. The Society agrees, however, that to the extent any Homemaker Services are provided in accordance with the provisions of Section 2.1 hereof, that such Homemaker Services shall be provided in accordance with the provisions of this Agree­ment.

7. In the Hamilton-Wentworth area, 14W Home Care contracted with the Dundas branch of the Red Cross and six other service providers prior to the strike. Roughly 5 to 6% of its approxi­mately 5,000 clients were referred to Red Cross. This lower proportion results in part from the fact that the Dundas branch of Red Cross only provides services to a part of the geographic area cov­ered by 14W Home Care. However, within the northwest area serviced by the Dundas Red Cross, the majority of referrals by 14W Home Care went to Red Cross, again because of a preference for not-for-profit agencies. Referrals were always made to Red Cross first in the northwest area, and only if Red Cross did not have a homemaker available were they directed to the other for-profit service providers. There were approximately 139 clients who were receiving services from Dundas Red Cross homemakers when the strike began. The 14W Home Care contract with Red Cross includes articles similar to those in the Brant Home Care contract.

8. The Region contracts with a total of nine service providers, including the Dundas branch of Red Cross. As a matter of policy, it divides its referrals evenly between for-profit and not-for-profit service providers. Prospective clients are given a needs test by the Region's staff and then provided with a list of agencies from which to choose. In practice, a number may already have an agency providing service because they are sent by HW Home Care when the latter's funding cri­teria no longer covers them. Unlike the two other Home Cares, the Region does not provide any assessment or monitoring of the client's situation, which is handled by the initial referral source. In effect, the Region essentially acts as a kind of broker for services, putting clients in touch with agencies and providing payment to those agencies on the basis of billing. In February of 1993, there were 14 clients being serviced by the Dundas branch of Red Cross out of a total of 580 Region clients. Again, the Region enters into written contracts with service providers like Red Cross. While it does not have explicit non-exclusivity clauses in those contracts, service providers are advised that the Region contracts with a number of agencies at the time the contracts are entered into.

9. To summarize at this point then, there are three Home Cares involved in this case which refer clients to either the Brantford or Dundas branches of Red Cross in addition to other service providers. Red Cross also accepts clients from other sources, including private clients, and those referred by organizations such as the Cancer Society. The number of these clients is very small, and the vast majority of clients serviced by Red Cross are referred by the Home Care pro­grams. There are 5500 homemakers across Ontario employed by Red Cross. Local 204 of the Ser­vice Employees International Union ("SEIU") represents 237 of those homemakers at the Brant­ford branch, and Local 532 represents 48 homemakers at the Dundas office. The other homemakers are unorganized. There is no question that Red Cross hires, fires, trains and super­vises the homemakers in this case.

10. With this background in mind, we turn to the events which prompted the application. The most recent collective agreements between Red Cross and the two SEIU bargaining units expired in December, 1992, and the parties commenced their third round of negotiations in Sep­tember of 1992. A conciliation officer was appointed on October 23, 1992 and on January 14th, 1993, the homemakers voted to strike.

11. Both in this round and the previous round of negotiations, Red Cross raised the issue of the Home Cares taking back the clients if there was a strike. At a negotiating session on January 20th, the evidence indicates that Red Cross suggested there might be layoffs as a result of a drop in referrals relating to the possibility of a strike. Red Cross also sent letters to homemakers in the Brantford branch on January 28th, 1993, setting out its negotiating position and containing the fol­lowing passages:

The Society also receives a higher rate for its Toronto Homemaking locations. However, instead of using that higher rate to pay its Toronto Homemakers higher wages, the Society uses that money to fund wages in locations where the government's funding rate is low; for example, the Brantford and Dundas Homemaker locations. In fact, the Society has provided the same wage grid and benefit package to all of its 5,500 Homemakers across Ontario. It is obvious that the Society cannot justify treating Brantford and Dundas better than the 5,500 Homemakers across the province. That would not be fair, nor affordable.

Remember, that we are not the only Homemaking agencies in Brantford/Dundas. Other agen­cies are available and willing to take and keep our clients. In fact, we are already losing clients.

12. The next day, Helen Fleischman, the Manager of homemakers in the Dundas branch sent a letter to employees in Dundas which was very similar. However, that letter contained the following passages:

Homecare may now stop referring new clients to the Branch in order to minimize the potential impact on clients in the event of a strike. We estimate that we will be losing 2,500 hours in Brantford and 560 hours in Dundas each month.

Remember, that we are not the only Homemaking agency in Dundas. Other agencies are avail­able and willing to take and keep our clients. In fact, we may already be losing clients.

Both letters close by telling employees that it is now illegal for them to serve their clients during the strike, and urging them to attend a union meeting whenever it is called so that they can present their opinions.

13. It is clear from the evidence of Brant and HW Home Cares that any decline in referrals in January had nothing to do with the possibility of a strike, as they did not in fact stop making referrals until the last week of February. In fact, their evidence indicates that at that point they had not advised Red Cross that they would stop referring clients if there was a strike and that neither Home Care advised Red Cross prior to the strike that they would not be referring the clients back to Red Cross after the strike. In the end, no homemakers were in fact laid off prior to the strike.

14. As a strike deadline loomed, Red Cross asked the applicants at a negotiating meeting on February 11th if they would consent to the use of some bargaining unit members during the strike for "critical" clients. No details were provided other than a figure for the number of home­makers required. Barbara Trahan, Director of Home Support Services for Red Cross, indicated that its negotiating team had not discussed who those clients were before the request was made to the unions. Neither did they discuss having management perform the work. The applicants initially refused to consent to the use of bargaining unit employees, and then requested more information. After that conversation and over the lunch hour that day, Red Cross drafted a letter asking the unions to Consent to the use of employees for "high risk" clients. It contained the following pas­sages:

The Home Care programs of Hamilton-Wentworth and Brant County have identified a certain number of high risk clients, i.e. clients whose lives, health or safety would be endangered by a withdrawal of service. Approximately 40 Brantford and 10 Dundas homemakers would be required to service these clients.

We would emphasize that it is not the Society that determines which clients are in the high risk category -- that determination is made by the Home Care programs.

Servicing this relatively small number of clients will surely not have any negative impact on the Union's position during the strike.

We anticipate that we will be able to update the number of homemakers required on Friday, as well as, identify the appropriate homemakers who are currently servicing these clients.

You have indicated today that you will not consent to the use of bargaining unit employees. We would hope that you will reconsider this position. If you do reconsider, please advise us immedi­ately.

15. Both Betty Muggah and Pat Davies, the Directors of HW Home Care and Brant Home Care respectively, testified that neither Home Care had at this point either identified clients in this regard or provided figures to Red Cross. The evidence of Ms. Trahan was that the figures on the number of critical clients from which Red Cross estimated the number of homemakers required on February 11th were from a phone call between Barbara Heatherington, the Manager of the Red Cross Brantford homemakers, and Ms. Davies at lunch time that day and from Ms. Fleischman. Ms. Heatherington told the Board that she did call Brant Homecare but spoke to another member of management, and obtained an estimate of how many clients were receiving essential services. She also spoke to the supervisors at Red Cross. The figure of forty homemakers which she came up with as a result was also an estimate, as she did not know how many homemaking hours were required. Her evidence was that Ms. Fleischman was unable to contact anyone at 14W Home Care that day.

16. Red Cross declined to provide much of the information requested by the applicants on the grounds of confidentiality. In particular, Ms. Trahan testified that Red Cross would never have divulged which clients had been identified as high risk. She agreed that it would be difficult for the unions to assess whether these clients fell into one of the exemptions in the Act without their names.

17. Red Cross did not provide the update information referred to in the letter of February 11th, and the applicants did nothing more at that point. Richard Zawislak, a business agent for SEIU, told the Board that the applicants thought the ball was in Red Cross's court. The position of

Red Cross was that it was waiting to hear from SEIU. On March 17th, lawyers for SEIU wrote to Red Cross asking for detailed information with respect to the latter's request. The response to this by Red Cross was to the effect that other agencies had been able to accommodate all the vulnera­ble clients. Ms. Heatherington testified that if the unions had consented, Red Cross would have taken care of the clients involved. However, she told the Board that she probably told Ms. Davies on February 12th that Red Cross could not look after these clients, even though the issue was still under discussion.

18. On February 12th, Red Cross sent homemakers a letter attaching the full text of its last offer, and informing them that this proposal would be implemented as soon as the unions were in a strike position. In addition the letter stated that the collective agreement would not apply after that date, and that Red Cross would cease the deduction of union dues. Then on February 24th, the unions officially notified Red Cross that homemakers would be on strike as of March 1st.

19. When Ms. Davies became aware of the possibility of a strike, she decided to develop a contingency plan. The gist of this plan was that if a strike occurred, the Brant Home Care case managers would assess the clients being serviced by Red Cross and identify those requiring home­making on an urgent or critical basis. These clients would then be referred to other service provid­ers. In cross-examination, Ms. Davies referred to these clients as "high risk", and said that these were clients who could not live at home without services, including palliative care. (Homemakers are not permitted to provide medical care, give medication, deal with medical devices such as colostomy bags, or take temperatures or blood pressure.) Brant Home Care's contingency plan also provided that new referrals would continue to be made to Red Cross if homemaking was not essential; where it was essential, referrals which would have gone to the Red Cross went to the other service providers.

20. Towards the end of January, Ms. Davies contacted seven service providers, including five which had not been used by Brant Home Care previously. She advised them that there was the possibility of a strike at Red Cross, that she needed other agencies to help service clients, and asked them if they had homemakers available. It appears that she also contacted the Waterloo and Woodstock branches of Red Cross in this regard. Several of those contacted raised questions about whether servicing clients formerly serviced by Red Cross would contravene the replacement worker provisions. As a result, Ms. Davies decided to obtain a legal opinion via a consultant at the Ministry of Health. This opinion, which was qualified in significant respects, indicated that sections 73.1 and 73.2 did not apply. She told the Board that her view was that if Red Cross was unable to fulfill its contract, she could contract with other agencies, and in fact, she was obligated to ensure that services were provided as a result of the Health Insurance Act. Ms. Trahan told the Board that Red Cross never advised Brant Home Care that the former could continue to provide services to critical clients during a strike if certain conditions under the Act were met, and Ms. Davies testi­fied that she was not aware this was an option. Later she said that she became aware of it around February 23rd. Ms. Heatherington, on the other hand, told the Board that Brant Home Care was advised prior to the strike that Red Cross was seeking the unions' consent to use bargaining unit employees to look after clients. She testified that she was not aware that Red Cross could have applied to the Board for directions with respect to specified replacement workers.

21. During the last week of February, 1993, Brant Home Care supervisors instructed case managers to call clients, advise them that Red Cross was going on strike, and talk to them about arranging for homemaking with another service provider. All 1200 clients were called. On March 1st, the Red Cross homemakers went on strike. Ms. Davies then implemented her contingency plan and case managers started referring clients to some of the service providers previously con­tacted by Ms. Davies. These did not include the two other branches of Red Cross, as the latter had

decided not to substitute homemakers from other locations for striking homemakers in light of the replacement worker provisions of the Act. Initially, only eighteen clients were identified as critical. Ultimately, 300-400 clients were reassigned. Criteria in this regard were left up to case managers. While the service providers would not necessarily know whether any particular client had been for­merly serviced by Red Cross, they were aware that the use of their services, or the increase in vol­ume of referrals in the case of those used by Brant Home Care prior to the strike, was as a result of the Red Cross strike.

22. Ms. Davies kept in touch with Red Cross, and sent them lists of the clients who had been discharged from Red Cross and referred to other agencies. Between 700-800 clients previ­ously referred to Red Cross were not referred elsewhere, and as a result did not receive any home­making services at all. Some of these clients said that they could manage by themselves, some had assistance from their families, and some said they would prefer to wait until their Red Cross home­maker was back. In some cases, the Red Cross homemakers had serviced the clients for several years, and a bond had been formed. Ms. Davies told the Board that initially she expected that if the strike had been short, the clients previously serviced by Red Cross and referred to the other agencies would be returned to Brant Home Care at the end of the strike for reassignment to Red Cross, as long as the client agreed. The only exception would have been for one of the for-profit service providers with whom she had discussed the possibility of giving them a "market share" and to whom she felt some obligation, despite the preference for not-for-profit agencies. If the strike went on for longer, Ms. Davies was less clear about what would happen. Ms. Heatherington told the Board that she never suggested to Ms. Davies that the clients should be referred back when the strike was over.

23. HW Home Care's response to the strike was similar to that of Brant Home Care. On February 23rd, Ms. Muggah authorized a memo instructing case managers not to make any new homemaking referrals to Red Cross and to commence reassigning critical clients to other agencies. The remainder of the clients Red Cross had been servicing were to be reassigned based on their ability to sustain a gap in service. Again, assessments were made by HW Home Care case manag­ers and no criteria were given to them in this regard. All the service providers to whom former Red Cross clients were referred had been used by HW Home Care prior to the strike. They were advised that they were being asked to take on these clients as a result of the strike. One service provider did not want to take the clients unless the referrals were "business as usual" in the sense that they were new referrals, rather than former Red Cross clients. This was because that agency had a positive relationship with SEIU in its nursing home division, and it did not want to jeopar­dize that relationship. Ms. Muggah also agreed that Red Cross had provided exemplary service for many years.

24. On the second day of the strike, Ms. Muggah in conjunction with other members of her staff decided to make the reassignments permanent. In other words, Red Cross would not get the clients back after the strike. Ms. Muggah testified that this was based on the possible disruption to clients if they were subsequently reassigned back to Red Cross after the strike and the resulting break in the continuity of care. At that point, however, some of the reassigned clients had not yet received visits from their new homemakers, and some were very attached to their Red Cross homemakers.

25. Similarly, the week before the strike, the Region's subsidy staff began contacting their fourteen Red Cross Clients, and made arrangements for them to be serviced by other service pro­viders. As at the time of the initial referral, clients were given a choice of agencies.

26. The effect of these arrangements by the Home Cares was that homemakers employed by other service providers were now doing the work which Red Cross homemakers had been doing previously. In addition, the work was being done at the same location, that is, the clients' homes. Private clients of Red Cross were also referred to other service providers.

27. On March 5th, Red Cross wrote to Local 204 through its solicitors, advising in essence that it was likely the Dundas service would close as a result of the strike and the subsequent trans­fer of clients, indicating that it had said this in bargaining and suggesting that the longer the strike went on, the longer it would take to recall the Brantford homemakers in relation to client build-up.

28. Three days later, Red Cross wrote to the homemakers in letters which included the fol­lowing passages:

The Homemakers in both branches are in difficult positions and I am sure they feel badly about their clients. Some Homemakers are concerned about availability of work after a strike and left last week and obtained employment with other Homemaking Agencies. Their take-home pay will be considerably less than they enjoyed with the Society: no extended health benefits, $0.77 less per hour in wages, and no mileage reimbursement (as Homemakers services a wide "rural" are they were paid an average of $1.19 for every hour they worked). This direct loss (wages + mileage) of at least $1.96 per hour will be a tremendous hardship to them.

As you are aware it is the nature of the service industry that, if we do not have clients to serve, we do not have jobs for Homemakers. During a strike our client base is lost to other providers and, in the view of Home Care, would be too disruptive for these clients to be returned to Red Cross once they have been assigned elsewhere. From the start, we have made it clear to the Union representa­tives, every year, that, if there was to be a strike, Homemakers would likely lose their jobs. Unfor­tunately during negotiations, the Union representatives did not appear to have taken this possi­bility of permanent loss of clients into account while planning their actions.

In Dundas, during the last working day before the strike, the Hamilton-Wentworth Home Care Program reassigned the 170 clients, which had been served by Dundas Homemakers to other providers. On March 4, 1993 we have confirmation from the Home Care Program that we will only have 2 (two) of those clients reinstated when the strike is resolved. Given the fact that the Dundas Branch only receives, on average, 1 (one) referral per day, we foresee recalling only 1 (one) Homemaker per week. With client discharges taken into account, at this rate it would take until April 1994 before all 45 Dundas Homemakers could be recalled.

With the disruption of our Dundas and Brantford programmes we will temporarily reallocate the management and administrative staff to other Branches, while we examine the options available and immediately, the viability of the the Dundas Homemaker Services operation. The other Branch programmes will continue to operate out of both Branch offices, as per usual.

(emphasis added)

29. On March 10th, a lawyer for Red Cross wrote to Local 204 advising that Red Cross had decided to close the Dundas service, that all employees would be terminated, and that therefore there was no point in continuing negotiations for the Dundas local. Other Red Cross programs would continue to operate out of the Dundas branch. The Red Cross then closed down its Dundas homemaking services permanently, and 45 of the striking homemakers lost their jobs. Some of them obtained new positions with the service providers who were servicing former Red Cross cli­ents. In some cases, the service providers attempted to ensure that these homemakers were not assigned to former Red Cross clients; in others~ no attempt was made to either prevent this or pro­vide that it happened. Several of the service providers required the homemakers to resign from Red Cross before employing them, but for others, no inquiry was made in this regard.

30. The evidence of Ms. Trahan indicates that the decision to end the Dundas branch's homemaking service was made, at least in part, as a result of the HW Home Care's decision on March 4th that it would not be returning clients to Red Cross after the strike. However, it also appears that Red Cross did not confirm the permanence of the referrals until after its Executive Committee had passed a motion to close the Dundas homemaking service. Ms. Trahan testified that several days into the strike, she was told by Ms. Fleischman that 14W Homecare had said Red Cross would not be getting the clients back. She told the Board that she had sent a letter to 14W Home Care confirming this, although Ms. Muggah testified that 14W Homecare did not receive this letter. Ms. Muggah confirmed, however, that she did tell Ms. Trahan that the clients were not returning. This was before they had consulted clients in this regard, even though she testified that the client's preferences would have been determinative. Ms. Muggah did not tell Ms. Trahan why the clients would not be returned, and Ms. Trahan did not ask. Red Cross has been providing ser­vice in the area for 46 years.

31. There was another conversation between Ms. Trahan and Ms. Muggah that day about whether the referral pattern would be different after the strike, particularly in light of the introduc­tion of an expanded homemaker program which would likely create more referrals. Ms. Muggah advised that the new program would probably not start until the fall and agreed that the maximum increase would be 30%, mostly in the Hamilton area. However, Ms. Muggah also told the Board that Red Cross had an increasing caseload in that area as a result of the growth in the caseload of 14W Homecare, and that Red Cross could have had all the referrals it could handle. If Red Cross had homemakers available, it would have received all the referrals in the relevant geographic area. She testified that if Red Cross came to HW Home Care and said that it needed a core of clients to continue, the Home Care would try to cooperate. Agencies have told the Home Care before that they needed a critical mass to survive and, Ms. Muggah testified, 14W Home Care has tried to be sensitive to this. She also said that the Home Care would be very pleased to continue to refer new clients to the Dundas branch of the Red Cross, and that their policy would be to make as many referrals as Red Cross could have taken.

32. Shortly after the closure of the Dundas service, Red Cross applied for a final offer vote of homemakers under section 40 of the Act. Red Cross then sent the homemakers another letter which included the following passages:

As you know, we have been forced to close the Dundas Homemaker Services due to the perma­nent loss of its client base.

Approximately 200 of Brantford's clients have been reassigned to other agencies. The other 3 agencies in Brantford are actively hiring so as to be able to take referrals from Home Care.

33. The relationship between the Home Cares, Red Cross and the other service providers is structurally an arm's length one in the sense that there was no evidence of overlapping directors, and so forth. In addition, it is clear that the other service providers are actually competitors of Red Cross for referrals from the Home Cares. Red Cross does have a fairly close working relationship with the Home Cares because their staff communicate about the needs of the clients, but this appears to be the extent of it. There is no evidence that Red Cross requested the Home Cares to take the clients back or refer them elsewhere during the strike, although it is clear that it assumed that this would happen. In other words, Red Cross never thought that it would be stuck with cli­ents for whom it could not provide service. Prior to the strike, Red Cross kept the Home Cares updated on the state of negotiations and the possibility of a strike. It also advised the Home Cares that it could not service clients during the strike. The Home Cares developed their contingency plans without Red Cross's involvement, although in one conversation, a Red Cross official sug­gested the names of several not-for-profit service providers in this regard. There was no communication at all between Red Cross and the other service providers. When the Home Cares referred the clients elsewhere, Red Cross discharged them from its program.

II. ARGUMENT

34. In essence, the unions' position is that the Home Cares and/or the service providers were acting on behalf of the Red Cross in accepting the Red Cross clients, and thus fell within the definition of "employer" under section 73.1. As a result, the employees of the service providers were prohibited replacement workers. In the alternative, counsel argues that the Home Cares alone were employers of the homemakers, and that they contracted out to the service providers for replacement workers contrary to section 73.1(6)5. The unions acknowledge that there were no for­mal arrangements between Red Cross and the others, but point out that the actions of the Home Cares and the service providers relieved the Red Cross of the dilemma it would have been in as a result of the strike. This dilemma was one the legislation intended it to be in, and for which there was a comprehensive code with respect to the use of specified replacement workers. In the alterna­tive, the unions say that we should define employer broadly, that we are enjoined to interpret it in keeping with its spirit and intent by the Interpretation Act, and that the intention is clearly to pre­vent replacement workers from doing struck work at the strike location (the "place of operations" in respect of which a strike or lockout is taking place). In interpreting "employer" in sections 73.1 and 73.2, we should look not only to the purpose of the provisions, but also by analogy, to sections 1(4), 64.1, and the allied doctrine for picketing, which are also relevant to the question of whether the responding parties were acting on behalf of Red Cross. The unions argue that unless we find that what happened here violated the Act, it will be impossible for homemakers to organize since they will not be able to strike in any meaningful sense as the work will be immediately removed. In the unions' view, Red Cross has circumvented the scheme of replacement worker provisions, when it could easily have taken care of the critical clients and met its labour relations obligations by func­tioning within that scheme. In the altemative, the unions argue that the responding parties violated sections 65, 67, and 71 by choosing a course of action that destroyed the bargaining rights of home­makers when other courses of actions were available, and by intimidating and coercing homemak­ers through the sequence of events set out above. In this connection, the unions also assert that Red Cross was prepared to give up the clients because it wanted to set an example for its unorgan­ized homemakers of the disastrous consequences of organizing.

35. Red Cross and the other responding parties argue, among other things, that sections 73.1 and 73.2 are not struck work provisions, in the sense that the Legislature did not prohibit everyone from doing the work. Rather, the legislation prohibits the employer from using a wide variety of people to do the work. Here, the Home Cares and the service providers were acting in their own interests, either fulfilling their statutory mandates to provide care (the Home Cares) or increasing their market share and obtaining more work (the service providers). Since there was no benefit to Red Cross, and indeed considerable harm to Red Cross in the case of the Dundas opera­tion, it could not be said that the Home Cares and the service providers were acting on behalf of Red Cross, and thus, they were not employers. Moreover, they cannot be considered employers in the absence of acting on behalf of Red Cross, according to counsel, because they function com­pletely independently and at arm's length. To find that competitors, for example, were acting on behalf of Red Cross tortures the plain meaning of the replacement worker provisions according to the responding parties. Even if the allied doctrine provided an analogy in interpreting "employer" in sections 73.1 and 73.2, this situation would not be caught by that doctrine, as enunciated in Consolidated Bathurst Packaging Limited, [1982] OLRB Rep. Sept. 1274. If Red Cross did not intend to use specified replacement workers under section 73.2, it had no obligation to work through the consent provisions of that section with the unions, and there is no requirement that an employer must use bargaining unit employees or specified replacement worker provisions, as long as it is not employing other replacement workers. In any event, Red Cross asked the unions to con­sent to the use of bargaining unit employees, and the unions refused. Red Cross analogizes the sit­uation to one where General Motors has two suppliers, Stelco and Dofasco. If Stelco employees strike, in counsel's view section 73.1 was not intended to prevent General Motors from getting more of its supplies from Dofasco. If it did so, Dofasco employees could not be considered replacement workers for Stelco.

III. DECISION

36. Sections 73.1 and 73.2 provide as follows:

73.1- (1) 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; ("personne")

"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 Ia grave 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:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. 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:

1. 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.

2. The work of an employee in the bargaining unit that is on strike or is locked out.

3. 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:

1. 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.

2. 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.

3. 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.

4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1(3).

5. 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.

73.2-(l) In this section, "specified replacement worker" means a person who is described in sub­section 73.1 (5) or (6) as one who must not be used to perform the work described in paragraphs 2 and 3 of sub-section 73.1(5).

(2) Despite section 73.1, specified replacement workers may be used in the circumstances described in this section to perform the work of employees in the bargaining unit that is on strike or is locked out but only to the extent necessary to enable the employer to provide the fol­lowing services:

1. Secure custody, open custody or the temporary detention of persons under a law of Canada or of the Province of Ontario or under a court order or warrant.

2. Residential care for persons with behavioural or emotional problems or with a physical, mental or developmental handicap.

3. Residential care for children who are in need of protection as described in subsection 37(2) of the Child and Family Services Act.

4. Services provided to persons described in paragraph 2 or 3 to assist them to live outside a residential care facility.

5. Emergency shelter or crisis intervention services to persons described in paragraph 2 or 3.

6. Emergency shelter or crisis intervention services to victims of violence.

7. Emergency services relating to the investigation of allegations that a child may be in need of protection as described in subsection 37(2) of the Child and Family Services Act.

8. Emergency dispatch communication services, ambulance services or a first aid clinic or station.

(3) Despite section 73.1, specified replacement workers may also be used in the circumstances described in this section to perform the work of employees in the bargaining unit that is on strike or is locked out but only to the extent necessary to enable the employer to prevent,

(a) danger to life, health or safety;

(b) the destruction or serious deterioration of machinery, equipment or prem­ises; or

(c) serious environmental damage.

(4) An employer shall notify the trade union if the employer wishes to use the services of speci­fied replacement workers to perform the work described in subsection (2) or (3) and shall give particulars of the type of work, level of service and number of specified replacement workers the employer wishes to use.

(5) The employer may notify the trade union at any time during bargaining but, in any event, shall do so promptly after a conciliation officer is appointed.

(6) In an emergency or in circumstances which could not reasonably have been foreseen, the employer shall notify the trade union as soon a possible after determining that he, she or it wishes to use the services of specified replacement workers.

(7) After receiving the employer's notice, the trade union may consent to the use of bargaining unit employees instead of specified replacement workers to perform some or all of the proposed work and shall promptly notify the employer as to whether it gives its consent.

(8) The employer shall use bargaining unit employees to perform the proposed work to the extent that the trade union has given its consent and if the employees are willing and able to do so.

(9) Unless the parties agree otherwise, the terms and conditions of employment and any rights, privileges or duties of the employer, the trade union or the employees in effect before it became lawful for the trade union to strike or the employer to lock out continue to apply with respect to bargaining unit employees who perform work under subsection (8) while they perform the work.

(10) No employer, employers' organization or person acting on behalf of either shall use a speci­fied replacement worker to perform the work described in subsection (2) or (3) unless,

(a) the employer has notified the trade union that he, she or it wishes to do so;

(b) the employer has given the trade union reasonable opportunity to consent to the use of bargaining unit employees instead of the specified replace­ment worker to perform the proposed work; and

(c) the trade union has not given its consent to the use of bargaining unit employees.

(11) In an emergency, the employer may use a specified replacement worker to perform the work described in subsection (2) or (3) for the period of time required to give notice to the trade union and determine whether the trade union gives its consent to the use of bargaining unit employees.

(12) On application by the employer or trade union, the Board may,

(a) determine, during a strike or a lock-out, whether the circumstances described in subsection (2) or (3) exist and determine the manner and extent to which the employer may use specified replacement workers to perform the work described in those subsections;

(b) determine whether the circumstances described in subsection (2) or (3) would exist if a strike or lock-out were to occur and determine the manner and extent to which the employer may use specified replacement workers to perform the work described in those subsections;

(c) give such other directions as the Board considers appropriate.

(13) On a further application by either party, the Board may modify any determination or direc­tion in view of a change in circumstances.

(14) The Board may defer considering an application under subsection (12) or (12) until such time as it considers appropriate.

(15) In an application or a complaint relating to this section, the burden of proof that the cir­cumstances described in subsection (2) or (3) exist lies upon the party alleging that they do.

(16) The employer and the trade union may enter into an agreement governing the use, in the event of a strike or lock-out, of striking or locked-out employees and of specified replacement workers to perform the work described in subsection (2) or (3).

(17) An agreement under subsection (16) must be in writing and must be signed by the parties or their representatives.

(18) An agreement under subsection (16) may provide that any of subsections (4) to (10) do not apply.

(19) An agreement under subsection (16) expires not later than the earlier of,

(a) the end of the first strike described in subsection 73.1 (2) or lock-out that ends after the parties have entered into the agreement; or

(b) the day on which the parties next make or renew a collective agreement.

(20) The parties shall not, as a condition of ending a strike or lock-out, enter into an agreement governing the use of specified replacement workers or of bargaining unit employees in any future strike or lock-out. Any such agreement is void.

(21) On application by the employer or trade union, the Board may enforce an agreement under subsection (16) and may amend it and make such other orders as it considers appropriate in the circumstances.

(22) A party to a decision of the Board made under this section may file it, excluding the rea­sons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

37. There was a considerable degree of consensus between the parties with respect to the overall legislative intent of these sections. It is apparent that they are not "motive" provisions in the sense that anti-union animus or some specific kind of intent is required. Like section 81 which provides for a statutory freeze, an anti-union intent may be relevant, but not necessary. In con­trast, for example~ section 72(2) defines a "professional strike-breaker" as someone whose primary object is to interfere with, obstruct, prevent, restrain or disrupt the exercise of rights in connection with a strike or lockout, and provides that "strike-related misconduct" has a similar motive-ori­ented meaning.

38. We adopt the submissions of several of the responding parties to the effect that the pur­pose of these amendments is to preserve the integrity and effectiveness of the strike as an eco­nomic weapon and to provide countervailing economic power to employees. In addition, both the unions and several of the responding parties referred us to material related to the legislative pro­cess which indicated that in a more general sense, the Legislature intended these provisions to reduce industrial conflict, facilitate the entry of women, part-time and other marginalized employ­ment groups into collective bargaining, and encourage compromise.

39. The unions also pointed out that we were bound to interpret these sections in a manner consistent with the Interpretation Act which provides as follows:

40. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attain­ment of the object of the Act according to its true intent, meaning and spirit.

Indeed, we accept that this is true with respect to the provisions of the various statutes that the Board administers. In addition, counsel for both the unions and a number of the responding par­ties referred us to various parts of section 2.1, which sets out the purposes of the Act.

40 There is no doubt that all of this provides the interpretative context in which we must apply sections 73.1 and 73.2. On the other hand, as eloquent as the unions' arguments were with respect to the purpose of the amendments, legislative intent does not in itself provide freestanding rights, nor does it substitute for specific and substantive provisions. Legislative purpose only becomes meaningful as one part of the exercise of understanding and administering some concrete provision. As a result, we turn to the amendments themselves.

41. Section 73.1 sets out various kinds of prohibitions with respect to the performance of work during a strike. Those prohibitions relate to the type of person or employee involved, the nature of the work, the location of the work, reprisals, and certain conditions and definitions. Sec­tion 73.2 then provides exceptions to those prohibitions, various procedures and rights with respect to the performance of work in those exceptional conditions, a mechanism for agreement and provi­sions for directions and enforcement.

42. It is clear that these sections do not purport to ban the performance of the work of strik­ing employees absolutely. For example, in addition to the named exceptions set out in section 73.2, the structure of section 73.1 permits the use of certain types of persons either explicitly or by omis­sion. At the same time, however, it is also apparent that the prohibitions are very comprehensive in scope, particularly in the case of work performed at the strike location. The differences between the restrictions under section 73.1(5) at any place of operations operated by the employer, and what is prohibited at the strike location by section 73.1(6) make it necessary for us to first deter­mine whether the work in this case is being performed "at a place of operations in respect of which the strike or lock-out is taking place".

43. Section 73.1(1) provides the following definition for this phrase:

"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.

44. A reading of sections 73.1(5) and (6) together indicates that the Legislature intended that there be a more comprehensive ban on the performance of work at the strike location, pre­sumably in part because that location is considered a more sensitive flashpoint with respect to picket line conflict. In this case, the homemakers ordinarily perform their work at the home of the client, making it a place of operations in respect of which the strike or lock-out is taking place. There was no dispute that the employees of the service providers currently furnishing homemaking services to those clients are also doing so at the home of the client, as the nature of the service itself implies. As a result, this situation falls within the more stringent prohibitions set out in sec­tion 73.1(6).

45. Critical to this case however, is the fact that section 73.1(6) prohibits the employer from using the persons described to perform the relevant work. In the circumstances before us, the evi­dence make it clear that Red Cross was not itself using anyone to do the work in question. How­ever, section 73.1(1) provides the following expanded definition of "employer":

"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;

"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;

46. The unions argue that we should give the word "employer" a meaning which would sweep in both the Home Cares and the service providers, based on the concept of the allied doc­trine with respect to picketing, an analogy to section 1(4) of the Act with respect to related employers, the kind of reasoning the Board uses in considering who is the real employer in con­tracting out circumstances such as those reflected in Kennedy Lodge, [1984] OLRB Rep. July 931, and the purpose of the provisions in a manner consistent with Haldimand-Norfolk (No. 3) (1989), 1 P.E.R. 17. In the alternative, the unions say that the Home Cares and the service providers were acting on behalf of Red Cross, based in part on some of the same analogies.

47. Turning first to the issue of the meaning of the word "employer" simpliciter, we note that the definition of employer in section 73.1(1) is exhaustive, rather than inclusive, unlike the definition of "person". In light of this, and keeping in mind the specific expansion set out in the provision with respect to persons acting on behalf of the employer, the plain meaning of "em­ployer" alone does not at first glance suggest that it would encompass, for example, arm's length competitors like the other service providers in this case. We accept the sound proposition in Haldimand-Norfolk, supra, that we should be giving "employer" a meaning most consistent with the purposes of these provisions. However, it must also bear some relationship to the plain mean­ing of the word itself, a match that can be made in the circumstances of Haldimand-Norfolk, supra, but which is very weak here. Even with respect to the relationship between the Home Cares and Red Cross, it is quite simply stretching things to describe the Home Cares as employers of the Red Cross homemakers on the facts before us. We accept that the fact that Red Cross hires, fires, disci­plines, trains, directs, supervises and pays the homemakers is not necessarily determinative; the Board has made it clear in both Kennedy Lodge, supra, and Brantwood Manor Nursing Homes Limited, [1986] OLRB Rep. Jan. 9 that it is not merely a question of which party performs these functions, but how they do so and to what degree. In this case, however, the facts do not give rise to a finding that the Home Cares have the kind of fundamental control over the homemakers that would establish they were in reality their employer.

48. By saying this, we should not be taken to have commented on whether the various rela­tionships between Red Cross, the Home Cares, and the other service providers amount to the cir­cumstances which would qualify for a declaration under section 1(4) of the Labour Relations Act. The applicants, while arguing that we should interpret "employer" in an expansive manner which reflected a labour relations context including the Board's section 1(4) jurisprudence, stopped short of asking for a section 1(4) declaration. Indeed, in light of the fact that section 1(4) was not pleaded, counsel for the applicants agreed that we should not make findings in this regard, a view that was echoed by some of the responding parties who indicated that other evidence might have been led had an application under section 1(4) been made. The applicants subsequently made such an application, which is currently adjourned sine die. As a result, we make no comment on the applicability of section 1(4) to these circumstances, other than to note that we have not explored some of the qualifications and nuances in the evidence before us which might relate to that issue.

49. In these circumstances, we take the unions' argument by analogy to section 1(4) as little more than a plea for a certain generosity of interpretation, and as providing the context for an expansive view of "employer". Again, we have no difficulty with this as a general proposition; it does not, however, by itself, lead us to the conclusion that either the Home Cares or the service providers are in fact employers of the Red Cross homemakers.

50. We now turn to the unions' arguments with respect to whether the Home Cares and ser­vice providers fall within the more expanded definition of "employer" by virtue of "acting on behalf' of Red Cross. Both the unions and a number of the responding parties argued at length with respect to the test to be applied in determining whether a party was acting on behalf of another. Among other things, we were referred to T. Eaton Company Limited, [1985] OLRB Rep. June 941, which, it was suggested, stood for the proposition that a party was not acting on behalf of another if it had a sustainable business reason of its own.

51. We do not find, however, that T. Eaton Company, supra, stands for that proposition. The Board in that case considered the respondents' sustainable business reasons in two ways: first, in the exercise of ascertaining Cadillac Fairview's motive for certain conduct, it looked to see whether it had a sustainable business justification; secondly, in the course of developing what was in essence a new form of unfair labour practice, it attempted to balance the respective interests of the parties, including Cadillac Fairview's justifiable business reason. We agree that it is indeed a useful part of the process of attempting to identify why a responding party is embarking on a par­ticular course of conduct to consider whether they have a business reason. However, this is simply part of the process of examining the facts of a case and drawing reasonable and probable infer­ences in the particular circumstances. It does not suggest that the existence of such a reason is det­erminative, but rather that it will be a significant fact among others in coming to relevant conclu­sions. A party may well be acting on behalf of another and at the same time, have business reasons of its own for a particular course of conduct.

52. Because the issue of whether a person is "acting on behalf' of another is essentially fac­tual, we think it would be a mistake to overanalyze it or set up some more elaborate test, as some of the parties urged. The plain meaning of the phrase suggests that to come within its ambit, at least part of the reasons for a party's activities must be to provide some benefit to another or at the behest of another. In this connection, we accept that where employers who are normally competi­tors conduct themselves so as to provide a kind of tacit, mutual aid arrangement during a strike, that may amount to "acting on behalf' of one, whether or not, for example, it would also amount to making them allies for the purposes of picketing. However, those are simply not the facts before us.

53. The other service providers in this case did nothing to assist Red Cross in any way. They were competitors who were only too pleased to obtain either a share of the work, or a larger share of the work at the expense of Red Cross. The only restraint shown in this regard related to the ser­vice provider who did not wish to jeopardize its relationship with SEIU. This competitiveness was even manifest in one of the other not-for-profit service providers who was also happy to pick up the clients and indicated that if Red Cross was out of the picture permanently, it wished to submit a proposal for the work. The service providers accepted the work solely to improve their own posi­tions, and with no interest or intent to assist Red Cross in any manner. There was some indication that they were interested in assisting the Home Cares; that, however, was clearly based on the sta­tus of the Home Cares as a source of business, and a desire to use this opportunity to obtain more of that business. In any event, that would only be relevant for our purposes if the Home Cares were acting on behalf of Red Cross.

54. Again, we find on the facts before us that this is simply not the case. We accept that it is important to make these assessments in context, and that in the health care sector, relieving a not-for-profit agency of clients it could no longer service might well be a significant benefit, particularly an agency so concerned about its reputation as some of the evidence indicated. We also accept the proposition in T. Eaton Company Limited, sup ra, to the effect that intent may be inferred in those circumstances. Indeed, the fact that the action of the Home Cares extricated Red Cross from pre­cisely the pressure that a strike in the health care sector exerts might well lead us to the conclusion that it was acting on behalf of Red Cross in other circumstances. However, in this case, the evi­dence made it clear that the Home Cares took the clients back because they felt both legally and morally obliged to provide them with service. In fact the Home Cares, far from wishing to assist the Red Cross, acted with somewhat ruthless disregard for its welfare. The most obvious example of this is the decision of 14W Home Care to make the new assignments permanent, a decision it maintained even in the face of information that it would mean the closing of the Dundas service of Red Cross. To some extent it appeared that this decision was made with reference to 14W Home Care's legal position; it was certainly difficult to justify on the basis of continuity of care given the very early point in the strike when it was made. Even discounting for some self-serving aspect, however, it amply demonstrates the relative indifference with which the Home Cares conducted themselves in relation to Red Cross.

55. In other words, the facts of this case do not fit into the language of section 73.1, even on the most generous interpretation. As a result, and in the absence of a finding that the Home Cares, the service providers and Red Cross are related employers under section 1(4), we find that neither the Home Cares or the other service providers were either employers of the homemakers or acting on behalf of Red Cross so as to bring themselves within the expanded definition of employer in section 73.1.

56. The applicants argued that in the alternative, "use" in section 73.1(6) should be inter­preted broadly enough so that even if "employer" did not include the Home Cares or the service providers, we should conclude Red Cross was indirectly using the employees of the service provid­ers so as to bring them within the ambit of the ban. However, the relationship between Red Cross and the homemakers employed by the other service providers was so remote as to defy even the most liberal construction of "use". Among other things we note again that the service providers were arm's length competitors, that they were not acting on behalf of Red Cross and that Red Cross had no control or even influence over either the other service providers or the homemakers employed by them. These are not circumstances which lend themselves to the conclusion that Red Cross was using the other service providers' employees. The effect is that neither they nor Red Cross violated section 73.1, since there is no evidence that Red Cross itself utilized replacement workers.

57. In these circumstances, there is no violation of section 73.2 as well. Counsel for the applicants conceded that for there to be a violation of that section on the facts before us, the ban on replacement workers would have to extend to the Home Cares and the other service providers. She also agreed that Red Cross was not required to use section 73.2 if it was not planning to use any workers during the strike. Since we have found that the ban on replacement workers does not extend to the other responding parties, and since Red Cross did not itself attempt to use replace­ment workers, whether or not Red Cross conducted itself in accordance with the mechanisms for agreement or resolution with respect to the use of specified replacement workers or bargaining unit employees is not in issue, at least for the purposes of considering a violation of section 73.2.

58. As a result of our findings in this regard, the portion of the application relating to sec­tions 73.1 and 73.2 is dismissed, and it is unnecessary for us to consider some of the other argu­ments of the responding parties.

59. We cannot leave this subject without noting with some concern the contrast between the intent of these provisions and their application in this context, where structural contracting out has diffused accountability between the Home Cares and the service providers. The effect of this is to empty any real meaning from the right to strike, and hence the bargaining rights. We recognize that in choosing how far these provisions will reach out to cover strangers to the employment rela­tionship, the Legislature has drawn what would normally be reasonable lines. The result, however, in these circumstances is troubling.

60. We now turn to whether on the facts of this case, Red Cross, the Home Cares or the service providers violated section 65, 67 or 71 of the Labour Relations Act which provide as fol­lows:

61. No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall participate in or interfere with the formation, selection or adminis­tration of a trade union or the representation of employees by a trade union or contribute finan­cial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coer­cion, intimidation, threats, promises or undue influence.

62. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

72. The applicant alleged that Red Cross had violated sections 65, 67 and 71, while the Home Cares and other services providers had contravened sections 65 and 71. Sections 65 refers either to an employer, or a person acting on its behalf. Given our findings above with respect to the Home Cares and the other service providers~ they were not in a position to violate this section being neither employers of the homemakers, nor persons acting on behalf of Red Cross. With respect to section 71, which proscribes intimidation and coercion by persons as well, there was no evidence before us which would suggest that either the Home Cares or the other service providers engaged in such conduct. The other service providers were essentially bystanders to this dispute, and the Home Cares, while they might be accused of a rather surprising indifference to the home­makers, did not engage in any activities directed at intimidating or coercing them. To the extent that the applicants' argument in this regard rested on the Home Care's removal and reassignment of the clients, we find it tenuous. There was no evidence that this conduct was intended to intimi­date or coerce the homemakers and no evidence from which such intention could be inferred. Rather, the evidence was to the contrary, that is, to the effect that the Home Cares acted solely to assist the clients.

73. The conduct of Red Cross, however, is quite a different matter. The evidence indicates that a central theme of its communications with homemakers and their unions was that the home­makers would lose their jobs if they exercised their right either to strike or to stay on strike. Red Cross stressed this theme on a number of occasions in both negotiations and letters to the home­makers and their unions. Among other things, in January Red Cross suggested to the unions in negotiations that there might be layoffs as a result of a drop in referrals relating to the possibility of a strike. The evidence indicates that the Home Cares had not reduced referrals at the time that this was said, and Ms. Heatherington admitted that any drop in referrals had nothing to do with the possibility of a strike at that point. Red Cross also wrote to the homemakers that month, indicating that the Home Cares would stop referring clients in order to minimize the impact in the event of a strike, and advising they were already losing clients, with obvious implications for job security. Again, the evidence indicates that the Home Cares had not either decided or advised Red Cross that they would do this, and did not stop referring clients until the last week of February.

74. Similarly, in March after the strike began, Red Cross wrote to Local 204 to the effect that it was likely the Dundas service would close as a result of the strike and the subsequent client transfers, and indicating that the longer the strike went on, the longer it would take to recall the Brantford homemakers. Three days later, Red Cross wrote to the homemakers, telling them that it had said from the start that if there was a strike, homemakers would lose their jobs, and implying that the Dundas operation might close. Three days after that, Red Cross announced the closure of the Dundas service, terminated the employment of the homemakers, and told Local 204 that there was no point in continuing negotiations for them. It then applied for a final offer vote, and wrote the homemakers again, urging them to vote for Red Cross' last offer. These letters also refer to the Dundas closing and imply the possibility of the same fate for Brantford. At this time, Brant Home Care had not decided whether or not the referrals to other agencies would be made permanent.

75. We are not prepared to comment on whether the closing of the Dundas service violated the Act since the portion of the complaint which included that allegation was withdrawn. However, the remainder of the evidence indicates that Red Cross on a number of occasions suggested, implied or outright told the homemakers that they were likely to lose their jobs if they exercised their right to strike or to continue on strike. And assuming without finding that the Dundas closing was properly motivated, it is also clear that Red Cross used it as a threat hanging over the heads of the homemakers both before and after the closure.

76. One of the most fundamental themes that runs through this Board's jurisprudence is that it is difficult to find anything more intimidating or coercive to an employee than the threat of losing their job. (See for example, Dylex Limited, [1972] OLRB Rep. June 357; Viceroy Construc­tion Company Limited, [1977] OLRB Rep. Sept. 562; Brinks Canada Limited; [1982] OLRB Rep. Aug. 1140; Somerville Belkin Industries Limited, [1980] OLRB Rep. May 791; Trulite Industries Limited, [1983] OLRB Rep. May 821; Aurora Resthaven Extended Care and Convalescent Centre, [1986] OLRB Rep. August 1031; and Thermogenics Inc., [1992] OLRB Rep. Feb. 224). In Roytec Vinyl Co., [1990] OLRB Rep. June 727, the Board commented on this problem in another con­text:

In the Board's experience, employees are often concerned that they may be subject to such reprisals by their employer for union activity. The Board's jurisprudence is replete with exam­ples of employees who were discharged or penalized in some way, at least in part, because of their support for unionization. For an employee who fears that joining a union will lead to a dis­charge or other penalty, the result he or she contemplates can be a loss of economic security, the loss of the social milieu of the workplace, a concomitant loss of self-esteem, identity or social standing, the uncertainty of finding another job and the possibility of a slide onto social benefits. Of course, in most cases such a bleak picture will not come to pass; nevertheless, the mere possibility of any of these consequences may exert a powerful influence on an employee contemplating collective bargaining, a regime frequently not welcomed by employers.

66. There is no doubt that commencing or continuing a lawful strike involves exercising rights under the Act. The linking of job loss to such an exercise would thus normally bring these statements within the ambit of sections 65, 67 and 71.

67. However, Red Cross argued that telling employees that they were likely to lose their jobs if they struck amounted to merely advising them of something that would happen as a result of the Home Cares removing the clients. The implication was that this was somehow an inevitable economic consequence of the strike which was beyond the power of Red Cross, and therefore referring to it was simply a prediction of either fact or the conduct of others, rather than intimida­tion on the part of Red Cross. We do not find this persuasive. The Board has found in a number of cases that where an employer suggests that there will be lessened job security as a result of losing customers or contracts, violations of the Act have occurred. (See for example, Havlik Technologies inc., [1992] OLRB Rep. April 468, Stratton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Loraine Products (Canada) Ltd., [1977] OLRB Rep. Nov. 734 and Bell & Howell Canada Ltd., [1968] OLRB Rep. Oct. 695.) Moreover, the Board has also indicated that statements which pur­port to be predictions of the future may be intimidating if employees will reasonably perceive their employer to have some control over whether those events will or will not occur. (See Havlik, supra, and Seven-Up/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87.)

68. In this case, we have noted previously that the evidence set out above indicates several of the statements made were not true, either at all or at the point in time they were made. More importantly however, neither the removal of the clients by the Home Cares, nor any subsequent loss of jobs was necessarily inevitable or entirely beyond the influence of Red Cross. On the con­trary, when it became apparent that there would be a strike, Red Cross embarked on a course of conduct which virtually ensured that the Home Cares would remove the clients. It made only the most perfunctory moves with respect to exploring the use of homemakers during the strike~ and advised at least one of the Home Cares that it would not be able to look after the clients during a strike far in advance of that being apparent. (We should add that the perfunctory approach taken by Red Cross was matched by the relative inertia of the unions in pursuing this issue. In fact, the evidence suggests that both parties were merely going through the motions in this regard with their eyes fixed firmly on the possibility of this litigation.)

69. Red Cross did not ask to keep the clients, never formulated any kind of plan to do so, and did not request that the clients be returned after the strike. When the assignments were made permanent in the case of HW Home Care, it did not protest, and did not even ask why. In other words, to the extent that Red Cross was in a position to influence events, it made choices which would guarantee the removal of the clients. Moreover, there is no dispute that the decision to close the Dundas service was a Red Cross decision, as was the decision to terminate the employment of the Dundas homemakers. Assuming without finding that these decisions were properly motivated, they were still the employer's decisions, not events beyond its control to which it could refer with some kind of impunity.

70. In saying this, we do not ignore the reality that events were also strongly influenced, if not dominated by the Home Cares, who might, for example, have removed the clients regardless of what Red Cross did. We also accept that the use of economic weapons may have some conse­quences. At the same time, we do not think that Red Cross can, justify statements that would oth­erwise be considered intimidating by suggesting that it was only referring to inevitable economic results caused by third parties, when its own choices figured in bringing about that course of events. The same is true for the assertion by Red Cross that it included these statements in mate­rial sent to homemakers because they were entitled to know the facts. As we have observed, whether or not these were the "facts" is not at all clear, and Red Cross had a role to play in whether they became facts or not.

71. Counsel for Red Cross also argued that his client was required to advise the unions that jobs might be lost on the basis of the principles set out in Westinghouse Canada Limited, [1980] OLRB Rep. April 577. In that case, the Board was asked to find that the failure of a company to reveal plans to relocate the operation outside the scope of the bargaining unit was a violation of the duty to bargain in good faith under section 15. In this regard, the Board said as follows:

72. Collective bargaining during the prescribed "open period" is the preferred vehicle for estab­lishing terms and conditions of employment in this jurisdiction. With the exception of union rec­ognition and inter-union jurisdictional disputes the scope of matters which may be bargained to impasse in this jurisdiction, as contrasted to bargaining under the National Labour Relations Act is virtually unlimited as is seen from the statutory definition of collective agreement. A collec­tive agreement is defined in the Act as an agreement in writing containing provisions respecting terms and conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees and under section 14 of the Act the parties are required to bargain in good faith and make every reasonable effort to make a collec­tive agreement. Once an agreement is reached, however, the parties are bound to it for its stipu­lated term and are prohibited from engaging in economic sanctions during its terms regardless of changing economic conditions or management initiatives. The restrictions placed upon a trade union in this regard are to be contrasted with the freedom allowed under section 152 of the Canada Labour Code, c. L-1 which permits a trade union to bargain to impasse about the effects of technological change occurring during the term of a collective agreement. Having regard to the importance of the exercise, the requirement for full and open discussion, the scope of mat­ters open to bargaining and the statutory framework which binds the parties to the terms of their agreement for its full term, can there be any doubt that the section 14 duty requires an employer to respond honestly when asked in bargaining if he is contemplating initiatives of the type which have a real likelihood of significantly impacting on the bargaining unit. Similarly, can there be any doubt that an employer is under a section 14 obligation to reveal to the union on his own initiative those decisions already made which may have a major impact on the bargaining unit. Without this information a trade union is effectively put in the dark. The union cannot realisti­cally assess its priorities or formulate a meaningful bargaining response to matters of fundamen­tal importance to the employees it represents. Failure to inform in these circumstances may properly be characterized as an attempt to secure the agreement of the trade union for a fixed term on the basis of a misrepresentation in respect of matters which could fundamentally alter the content of the bargain.

The Board went on to find that section 15 did not require an employer to reveal on his own initia­tive plans which have not become at least de facto decisions.

72. At best, Westinghouse Canada Limited is a very awkward fit with facts before us. The evidence indicates that most of the statements referred to above were not made for the purpose of disclosing plans made by Red Cross. The only exception might be the letter of March 5th to Local 204 advising that it was highly unlikely that the Dundas service would re-open, and that a final decision would be reached the following week. Rather, the evidence supports the conclusion that the other statements were made for the purpose of deterring employees from going on strike or staying on strike by suggesting that they would lose their jobs as a result. Moreover, a Westing­house-type obligation would not explain why these statements were included in letters to individual homemakers rather than the unions. In the circumstances, we do not think that Red Cross can shelter its conduct in this manner.

73. In light of the evidence before us and the Board's jurisprudence, we find that Red Cross violated sections 65, 67(c) and 71 of the Act by making intimidating statements to employees for the purpose of deterring them from exercising their rights under the Act.

74. The applicants also argued that Red Cross contravened the Act by circumventing the replacement worker provisions and thereby effectively destroying the bargaining rights of the homemakers. In counsel's view, Red Cross could have satisfied its own interests without damaging the homemakers' bargaining rights by following the scheme of section 73.2 which provides excep­tions to the ban on replacement workers in certain situations. In this regard, counsel relies primar­ily on the cases of Webster and Horsfall (Canada) Ltd., [1969] OLRB Rep. Sept. 780 and Humber College of Applied Arts and Technology, [1979] OLRB Rep. June 520.

75. In Webster and Horsfall (Canada) Ltd., it was alleged that an employer who went out of business during a strike had committed an unfair labour practice. Ultimately the Board found that the company's decision to close, which resulted from a confluence of economic factors including the strike, was not a contravention of the Act. In Humber College, supra, the Board addressed an alleged violation of section 76 of the Colleges Collective Bargaining Act. The employer in that case had permanently contracted out the work of unionized security guards for the purpose of guaran­teeing continuity of security during the course of any future strike which might occur. The Colleges Collective Bargaining Act permitted guards to strike, but also contained provisions allowing the college to close if its buildings, equipment or supplies might not be adequately protected during a strike. In this context, the Board found that the college had violated the provision in question by contracting out the work because it was afraid that its in-house security guards would exercise the right to strike.

76. There are a number of obvious points of departure between these cases and the facts before us, which we do not intend to belabour. Suffice to say that among other things, we also think it would be untenable to find that the failure by Red Cross to utilize the provisions of section 73.2 was an unfair labour practice in circumstances where: a) we have found that Red Cross was the only employer, and it was not using any replacement workers; b) the applicants conceded that if we found that Red Cross was the only employer and was not using replacement workers, Red Cross was not required to follow the scheme of section 73.2; c) the applicants were not prepared to say at the hearing whether any part of the facts before us would even come within the exceptions to the ban set out in section 73.2; and d) the applicants refused to consent to the use of bargaining unit employees and were as lethargic as Red Cross in utilizing the provisions of section 73.2. As a result, this aspect of the application is dismissed.

77. This brings us to the question of the appropriate remedy for the violations of sections

65, 67 and 71. At the hearing, the parties made arguments with respect to whether we should direct the reopening of the Dundas office. Subsequently, the unions clarified that they had withdrawn that part of their requested relief which related to the reopening of the Dundas office. The only other remedy requested which was not connected to the allegations under sections 73.1 and 73.2 or the unions' Webster and Horsfall argument was a posting. Since employees in this case do not work in one central location, we direct that Red Cross mail the notice attached as Appendix "A" to each employee in the bargaining unit as of March 1,1993.

78. The responding parties also requested costs. The Board has a well-established policy of not awarding costs for the reasons set out in Repac Construction & Materials Limited, [1976] OLRB Rep. Oct. 610. We do not see any reason to depart from that policy in a case of first instance such as this involving complex provisions of the Act, where, among other things, there was a reverse onus on the responding parties.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

AFTER A HEARING IN WHICH BOTH THE CANADIAN RED CROSS SOCIETY ONTARIO DIVISION AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCALS 204 AND 532 HAD A CHANCE TO PRESENT EVIDENCE AND MAKE ARGUMENTS. THE ONTARIO LABOUR RELATIONS BOARD HAS POUND THAT,

1. THE CANADIAN RED CROSS SOCIETY ONTARIO DIVISION DID NOT VIOLATE THE REPLACEMENT WORKER SECTIONS OF THE LABOUR RELATIONS ACT: AND

2. THE CANADIAN RED CROSS SOCIETY ONTARIO DIVISION DID VIOLATE OTHER SECTIONS OF THE LABOUR RELATIONS ACT BY SUGGESTING OR TELLING HOMEMAKERS THAT THEY MIGHT LOSE THEIR JOBS IF THEY COWIENCEQ OR STAYED ON A LAWFUL STRIKE.

AS A RESULT. THE BOARD HAD DIRECTED THAT THIS NOTICE BE SENT TO ALL EMPLOYEES TO INFORM THEM OF THEIR RIGHTS,

THE LABOUR RELATIONS ACT GIVE ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES INTO UNIONS:

TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION. INCLUDING A LAWFUL STRIKE:

TO ACT TOGETHER FOR COLLECTIVE BARGAINING:

TO REFUSE TO DO ANY AND ALL OF THESE THINGS;

AN EMPLOYER IS NOT PERMITTED:

TO INTERFERE WITH THESE RIGHTS BY USING INTIMIDATION OR UNDUE INFLUENCE TO PREVENT EMPLOYEES FROM EXERCISING THESE RIGHTS:

TO RESTRAIN OR COERCE EMPLOYEES IN ANY MANNER IN THE EXERCISE OF THESE RIGHTS.

This is an official notice of the Board and must not be removed or defaced.

DATED this 10th day of JANUARY, 1994.