[1994] OLRB Rep. September 1265
3574-93-U International Brotherhood of Electrical Workers, Local 636, Applicant v. The Hydro-Electric Commission of the City of Ottawa, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.
APPEARANCES: P. Hunt and J. Shields for the applicant; J. Emond and S. Bird for the responding party.
DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER R. W. PIRRIE: September 14, 1994
- The Hydro-Electric Commission of the City of Ottawa is the municipal electric utility that supplies power to the City of Ottawa, the City of Vanier and the Village of Rockcliffe Park. On January 17, 1994 its outside bargaining unit went on a lawful strike. On January 18, 1994 the union representing those employees brought an application under section 91 of the Labour Relations Act alleging that the Commission was violating section 73.1(6). This provision states in part:
73.1 (6) The employer shall not use any of the following persons to perform [the work of an employee in the bargaining unit that is on strike or is locked-out] at 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 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.
According to the union, the Commission was using 11 non-bargaining unit/non-managerial employees from "another of the employer's places of operations" to perform the work of striking employees at "a place of operations in respect of which the strike ... [was] taking place".
The Commission responded with two arguments. First, it argued that it has only one "place of operations". Accordingly, none of the 11 replacement workers could possibly be performing work at a place of operations that was different from the one at which they ordinarily work. Second, the Commission argued that the 11 replacement workers were persons who exercise "managerial functions" and who do not ordinarily work at a "place of operations other than a place of operations in respect of which the strike [was] taking place
Initially, the union rejected the Commission's assertion that the 11 replacement workers ordinarily exercise managerial functions. As the hearing progressed, however, it conceded that this was so with respect to six of them. The union also did not dispute the Commission's assertion that the managers ordinarily work at a "place of operations in respect of which the strike [was] taking place" within the meaning of section 73.1(6)2.
In a decision dated February 10, 1994, a majority of this panel dismissed the union's application for reasons to follow. The application was dismissed as it related to the six managers for the reasons submitted by the Commission. The union did not take the position that the managers ordinarily work at a place of operations that was not on strike; nor did it dispute the Commission's interpretation of section 73.1(6).
With respect to the five non-managerial replacement workers, the application was dismissed for the reasons set out below.
Facts
Ottawa Hydro purchases the vast majority of its power from Ontario Hydro. It receives this power at 12 transformer stations and reduces it to a usable voltage at 45 sub-stations located throughout its service area. The power is then conveyed to 135,000 residential, commercial and institutional customers via 750 kilometers of underground cable and 960 kilometers of overhead able. The underground cable runs through approximately 2,500 manholes, while the overhead cable is supported by approximately 25,000 Hydro poles. The hydro poles also support approximately 36,000 transformers and street lights. Members of the bargaining unit and others may be called upon to work on all of this equipment and at any number of these sites.
The Commission also operates two generating stations on Victoria Island in the Ottawa River. The generating stations draw power from the ChaudijH 2i re Falls and deliver it via an "electrical bus" to one of the Commission's 12 transformer stations where it is integrated with the power received from Ontario Hydro. The power generated by the ChaudijH 2h re Falls offsets an average of approximately $10,177.00 in purchases from Ontario Hydro per day. This translates into a savings of approximately 0.5 per cent in the rate charged to Ottawa Hydro customers.
At the time of this decision, the union represented approximately 290 Ottawa Hydro employees. These employees were members of either an inside or an outside bargaining unit. The inside unit consisted of approximately 100 employees. The outside unit consisted of approximately 190 employees. Since the date of this application, these units have been combined by another decision of this panel.
The collective agreement for the outside bargaining unit contains approximately 18 classifications. The number of persons assigned to each classification varies from 75, in the case of the "lineman" classification, to one in the case of the "carpenter" and "body repairman" classifications. Linemen take care of the overhead and underground residential cable systems, while the carpenter and body repairman work primarily in the Commission's shops.
All but five members of the outside unit begin and end each working day at the Commission's 10 acre site on Albion Road. This site contains a three storey office building, an interior warehouse with adjacent stores, a pole yard, one of the 12 transformer stations, one of the 45 substations, a garage, and a parking lot.
Of the approximately 185 bargaining unit members who begin and end each work day at Albion Road, several stay there for almost the entire day working in the service buildings. The others punch in and out at Albion Road but spend most of their time working "in the field" i.e. at various locations within the Commission's geographic boundaries, including those referred to in paragraph 7 of this decision and the generating stations.
The five bargaining unit members who neither start nor finish their days at Albion Road are employed at the Victoria Island generating stations, on a one person per shift basis. The output of the generating stations- and the activities of the operator assigned there are supervised from Albion Road by the systems operator. The systems operator is also responsible for the activities of 12 other operators who share the classification of "travelling operator" with those assigned to the generating stations. Unlike the travelling operators assigned to the generating stations, the other travelling operators, in fact, travel - five within the east end of the Commission's territory and five within the west end. The two remaining travelling operators are in training. Apart from the individual assigned to the generating stations, only two travelling operators are on shift at any one time.
The systems operator monitors the entire electrical transmission and distribution system, including the output of the generating stations, from a "board" at Albion Road. This enables the systems operator to direct the travelling operator assigned to the generating stations to raise or lower output levels during the course of the day in accordance with fluctuations in demand. The systems operator is also responsible for providing work assignments to the two travelling operators who work in the east and west ends of the Commission's territory as they come on shift. He maintains radio contact with them, and with the travelling operator at the generating station, to make any re-assignments or to provide emergency instructions or advice.
There is no on-site supervision at the generating stations. The travelling operator assigned there typically spends most of the day working alone, monitoring the operations of the two generating stations from a panel at one of them. The operator also performs daily maintenance on the stations. One such task requires the assistance of another travelling operator who visits each day for that purpose. When the operator assigned to the generating stations is away on training, or is ill or on vacation, other travelling operators will fill-in.
During the summer months, the generating stations are shut down and employees from other classifications attend to perform a variety of repair, maintenance and upgrading tasks. Some employees will report directly to the generating stations during this period. Other less routine maintenance tasks are performed at the generating stations throughout the year, requiring the presence of additional crews. These crews may be made up of bargaining unit members, engineering/technical personnel and/or "managers", all of whom are drawn from Albion Road.
The generating stations assignment is an entry level position within the travelling operator classification. The Commission's practice is to keep an operator at the generating stations for no more than two years, before requiring them to travel in the field. Typically, the Commission also fills vacancies in the systems operator classification from among senior travelling operators.
With respect to the five non-managerial replacement workers still in issue, two worked at the generating stations during the strike. Two others made service calls at locations throughout the Commission's geographic territory. The fifth performed underground cable locates wherever needed. Before the strike began, all five ordinarily started and finished their days at Albion Road, but each would go into the field with varying frequency and for varying amounts of time.
Gordon Cavanagh is a customer vault maintenance co-ordinator. Ordinarily, he spends approximately 80 to 90 per cent of his day in the field co-ordinating work on the Commission's 800 customer vaults. During the strike, Mr. Cavanagh was one of the two employees making service calls to customer premises and dwellings.
Scott Edey is a street light technician who works in the field every day. Mr. Edey was the other employee making service calls during the strike.
Matt Clouthier is an underground and overhead distribution technician. Before the strike began, Mr. Clouthier worked in the field only slightly less often than Messrs. Cavanagh and Edey. During the strike, he performed underground cable locates.
Mark Holland is an "engineer, electrical distribution". Ordinarily, he is involved in an underground wiring project in Ottawa's downtown and market areas, and works there daily. During the strike, Mr. Holland worked at the generating stations.
Until approximately six weeks before the strike began, Mr. Holland's position was occupied by Casey Malone. Mr. Malone is now involved in an automated mapping and facilities management project. Although this project will likely require him to work in the field less often than before, it was too early at the time of the hearing to say how much less often. Mr.jH Malone was the other employee working at the generating stations at the time of the strike.
During the strike, the union established pickets at Albion Road, the generating stations and other work sites located throughout the Commission's territory, including some residential dwellings where service calls were being made.
Decision
The issue that remains in this case is whether any of the five non-managerial replacement workers that were performing bargaining unit work at "... a place of operations in respect of which the strike ... [was] taking place ..." ordinarily work at "another of the employer's places of operations" within the meaning of section 73.1(6)1. The Commission argues that it has only one place of operations, encompassing everything in its entire service area. This includes Albion Road, the field and the generating stations. The union argues that the Commission has a potentially limitless number of places of operations and, in any event, not less than those three. It also submits, implicitly, that the five non-managerial replacement workers ordinarily work at Albion Road, and that those they were replacing ordinarily work in the field or at the generating stations.
This is the first time the Board has had to consider the meaning of the phrase "place of operations". Neither party provided the Board with any material associated with the legislative process or any authorities from other jurisdictions to illuminate the meaning to be given to these words. The employer took the position, on the facts, that its operations were entirely integrated and that no single location could be meaningfully separated from the others for the purposes of section 73.1(6). The union, on the other hand, urged us to give effect to the purposes of the replacement worker provisions by adopting an approach that would enhance its ability to wage a successful strike by restricting the employer's ability to operate (See: Canadian Red Cross Society, [1994] OLRB Rep. Jan. 34 and Famous Players Inc., [1993] OLRB Rep. Dec. 1270). On the facts of this case, the union said, that could reasonably be accomplished by finding Albion Road, the "field" and the generating stations to be separate places of operations, and by finding the places at which the replacement workers ordinarily work to be different from those at which they worked during the strike.
A majority of the panel was not attracted to the interpretive approach advocated by the union. As noted in Red Cross, "it is clear that [sections 73.1 and 73.2] do not purport to ban the performance of the work of striking employees absolutely". Instead, the Legislature has enumerated a complex set of restrictions having regard to such factors as: the place of operations at which the bargaining unit work is being performed; the date of hire, engagement or transfer of those performing it; the managerial, bargaining unit, non-managerial/non-bargaining unit or "third party" status of the replacement workers; and the place of operations at which the replacement workers ordinarily work.
In general terms, the employer will be under greater or lesser restrictions in the categories of personnel able to perform bargaining unit work depending upon whether the work is performed at the struck location or elsewhere. Dealing solely with the struck premises, and depending upon whether there is more than one such location within a single bargaining unit, the employer is permitted the greatest freedom in its use of managers, somewhat less freedom in its use of non-managerial personnel, and is precluded entirely from using bargaining unit members, non-managerial personnel who choose not to work, persons supplied by third parties, volunteers, and persons hired, engaged or transferred to the struck location after a specified date.
The primary reasons underlying the recent introduction of the replacement worker provisions, as noted in Red Cross, were to increase the effectiveness of the strike weapon and to reduce the potential for picket line violence by eliminating certain "flashpoints". Applying that rationale to the restrictions set out in section 73.1(6), it would appear that the Legislature views as less threatening to the success of the strike and less likely to contribute to the potential for picket line violence the use of non-bargaining unit personnel who have some attachment to the premises affected by the strike. That attachment is measured, first, by identifying the place of operations in respect of which the strike is taking place and, second, by determining the ordinary place of work of the replacement workers.
Where there is only one "place of operations in respect of which the strike ... is taking place", the restrictions on the use of managerial and non-managerial/non-bargaining unit personnel who do not refuse to work will be the same: both must "ordinarily work" at the place of operations in respect of which the strike is taking place to be able to perform bargaining unit work there during the strike. Where, however, there is more than one "place of operations in respect of which the strike ... is taking place" at which bargaining unit members ordinarily work, the restrictions on the use of non-managerial/non-bargaining unit personnel and managers will vary: non-managerial/non-bargaining unit personnel will only be able to perform bargaining unit work at the same place of operations as the one at which they ordinarily work (section 73.1(6)1); while managers who ordinarily work at a struck place of operations will be permitted to perform bargaining unit work at any struck place of operations (section 73.1(6)2). Accordingly, the breadth of meaning given to the phrase "place of operations" may determine, in a given case, the number of non-bargaining unit personnel able to perform bargaining unit work.
The statute does not define "place of operations". What it does define is "place of operations in respect of which the strike or lock out is taking place" as including "any place where employees in the bargaining unit who are on strike or who are locked out would ordinarily perform their work" (section 73.1(1)). However, the purpose of that definition appears to be to distinguish between struck places and non-struck places, rather than between struck places. Accordingly, it is of little assistance in this case.
In the absence of a statutory definition, therefore, and consistent with the foregoing rationale, it seems appropriate for the Board to consider the extent to which the proposed places are geographically and operationally distinct. If the goal of determining whether a particular workplace constitutes "another of the employer's places of operations" is to identify an employee complement prohibited from working or entitled to work at that place, it must first be possible to separate that place from others in the employer's operation not only in terms of geography but operational activity. While the extent of the physical and operational integration or separation required, and the factors relevant to each, may vary from case to case, critical will be the nature of the employee activity within the physical locations in dispute.
On the facts of this case, and having regard to the nature of the Commission's operations and the geographic locations at which they are carried on, a majority of this panel is of the view that those aspects of Albion Road, the field and the generating stations at which the replacement workers and bargaining unit members ordinarily work, are not sufficiently distinct as to constitute separate "places of operations".
The evidence we heard was of a highly integrated, continuously functioning, hydro-electric system carried on at countless locations within the cities of Ottawa and Vanier, and the Village of Rockcliffe Park. Included among these locations are Albion Road, the thousands of work sites referred to in paragraphs 7 and 8 of this decision, and the generating stations.
While geographically diffuse, all of the Commission's various work sites are operationally linked, not only by means of cables and equipment but, more importantly, by employee activity. Both bargaining unit and non-bargaining unit personnel may be deployed to various work sites in a given day. Depending upon the specific employee's classification or job title, these sites may include any number of customer homes, transformer stations, substations, customer vaults, telephone polls, manholes, and the generating stations. In respect of all of these sites, and for the employees working at them, Albion Road serves as both a "nerve centre" and a "home base".
Except in the case of the travelling operators assigned to the generating stations, and a few individuals working in the service buildings, all of the employees in respect of whom we heard evidence spend some of their time at Albion Road and some in the field. (Indeed, Messrs. Cayanagh, Edey and Clouthier appear to work in the field with sufficient frequency to qualify as permitted replacement workers even on the union's theory of the case). The differences in the amount of time spent by the replacement workers and the bargaining unit members at these locations are not sufficient to suggest to us that they are separate places of operations. Nor does the fact that the travelling operator assigned to the generating stations punches in and out at that location and generally remains there for the entire day lead us to conclude that the generating stations are "another of the employer's places of operations" separate from Albion Road or from any other location at which the replacement workers or bargaining unit members ordinarily work. Just like the travelling operators who actually travel, the individual assigned to the generating stations is supervised from Albion Road and is in regular contact with that location to obtain operational instructions and advice. Together, the generating stations, the other field locations, and Albion Road are part of a comprehensively integrated operating system.
The degree of integration of the generating stations into the rest of the Commission's operations is highlighted by their dependency upon the personnel and expertise dispatched from Albion Road. Without the daily maintenance support from other travelling operators and the additional activity performed on an as-needed basis and during the summer shut-downs, the generating stations could not operate. Much like the unstaffed transformer stations, the generating stations are dependent upon the work of bargaining unit members and others from Albion Road for their safe and continuous operation. The contact between the travelling operator assigned to the generating stations and other Commission personnel is both substantial and essential to the continuous functioning of the generating stations as part of the Commission's overall hydro-electric network.
It is noteworthy as well that the output of the generating stations appears to contribute only a fraction to the Commission's "bottom line", and that there is only one individual assigned there. While it may not be necessary to have a substantial employee complement at a given location for it to constitute "another of the employer's places of operations", the absence of any supervisory personnel and the presence of only one employee suggests to us an absence of operational distinctiveness and independence.
On the basis of all of these factors, we concluded that the locations at which the replacement workers were working during the strike and the places at which they ordinarily work do not constitute separate "places of operations" within the meaning of section 73.1(6)1. On that basis, and for the reasons given at the beginning of this decision, the application was dismissed.
DECISION OF BOARD MEMBER P. V. GRASSO; September 14, 1994
With respect to my colleagues, I must dissent from their decision.
In this application the union asserts that the employer has contravened subsection 73.1(6) of the Labour Relations Act. This subsection limits the use of replacement workers when employees in the particular work site are on a lawful strike. Section 73.1(6) provides as follows:
(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.
4.. 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.
Subsection 73.1(5) provides as follows:
(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.
Subsection 1(3) of the Act provides as follows:
1.- (3) For the purposes of this Act, no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
Thus, employers are prevented from using (at a place of operations where a strike is ongoing) employees from another of their places of operations to do the work of employees in the striking unit. The work of striking employees may be performed at the struck location, however, by managerial and non-bargaining unit employees who ordinarily work at the same location as the strikers.
In my opinion, Ottawa Hydro has violated section 73.1(6) of the Act by using employees from other work sites to do the work of employees in the particular work sites that are on strike. The composition of the bargaining unit is not the relevant inquiry under section 73.1. Rather, section 73.1 focuses on the "place of operations in respect of which the strike or lock-out is taking place" as well as the place where the replacement worker "ordinarily works". In other words, the relevant question is not who, but where. The employer is not permitted to bring in employees from one place of operations to do the work of employees who are on strike in another place of operations. That this is the legislative intent underlying section 73.1(6) is demonstrated by the following statement by the Honourable Minister of Labour, Bob Mackenzie, made during the debate on Bill 40: (Legislative Assembly of Ontario, Official Report of Debates (Hansard), No.46 at 1849 (6 July 1992).
It is clear that the use of some replacement workers prolongs labour disputes, uses up costly police resources, creates an air of conflict and all too often leaves a legacy of bitterness. We are therefore proposing to prohibit the performance of work of striking and locked-out employees by everyone except managers and other non-bargaining unit employees working at the same location.
(emphasis added)
This interpretation has also been accepted by the Board in The Canadian Red Cross Society, [1994] OLRB Rep. Jan. 34 at 48-49 which stated:
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 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.
(emphasis added)
The Board confirmed that this is the proper approach to be taken in Labatt's Ontario Breweries, Div. of Labatt Brewing Co., [1994] OLRB Rep. June 704 at 12.
Turning to the facts of this case, the Hydro-Electric Commission of the City of Ottawa is an electrical utility which operates in Ottawa, Vanier, and Rockcliffe Park. As with any large utility, Ottawa Hydro does not have only one place of operations. It operates a headquarters (at 3025 Albion Road North in Ottawa), where the majority of its employees work, and a number of separate transformer and generating stations. As well, most of the employees in the Works Department work in the field. The generating stations at issue in this case are located some distance away from the headquarters: namely, on Victoria Island in the Ottawa River.
On the evidence before us I find that the Albion Road Works, the Victoria Island generating stations and the field works each constitute a separate place of operations.
As mentioned, each enumerated work site is a distinct "place of operations in respect of which the strike or lock-out [was] taking place". Each is staffed by bargaining unit employees who were on strike and picketing occurred at all three locations.
As the majority has pointed out, the union conceded that six of the eleven employees at issue are managerial or confidential. The five remaining employees ordinarily work at Albion Road. However, during the strike, they acted as replacement workers at both the Victoria Island generating stations and the field. I am therefore of the opinion that they constituted replacement workers in violation of section 73.1(6). For these reasons, I would have granted the union's application.