Canadian Union of Public Employees and its Local 229 v. Marriott Management Services, 1994 CanLII 9939

[1994] OLRB Rep. June 729

0227-94-U Canadian Union of Public Employees and its Local 229, Applicant V. Marriott Management Services, Responding Party

BEFORE: Robert D. Howe, Vice-Chair, and Board Members I. A. Rundle and R. R. Montague.

APPEARANCES: Sean McGee, Bruce Dodds and Harold Vandertol for the applicant; David Cowling and Jim Fougere for the responding party.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE: June 20, 1994

1. In a decision dated May 4, 1994, the majority of this panel, with Board Member Rundle reserving her decision, wrote as follows:

2. This is an application under section 91 of the Labour Relations Act.

3. For reasons which will be provided at a later date, the majority of this panel of the Board, with Board Member Rundle reserving her decision, hereby finds that the responding party has contravened section 73.1 of the Act by using Saskia Wagemans, Sandra Gilmour, Carole Smith, Linda Symonds, Cohn Johnson, and Lorna Willis to perform the work of employees in the bargaining units that are on strike, and hereby orders the responding party to cease and desist from using those persons to perform that work.

The purpose of this decision is to provide our reasons for making that finding and order.

2. Section 73.1 of the Act provides, in part, as follows:

(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:

I. 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.

6. During the course of the first day of hearing of this matter on April 27, 1994, the parties agreed that the preconditions set forth in subsections 73.1(2) and (3) have been met in this case in respect of both the full-time and part-time bargaining units. They also agreed that the case should be decided on the basis of the following stipulated facts:

The six individuals in question in these proceedings are Saskia Wagemans, Sandra Gilmour, Carole Smith, Linda Symonds, Cohn Johnson, and Lorna Willis.

The responding party (also referred to herein as "Marriott") operates a number of food services at Queen's University. It has retail operations and residences. It also has a main office. The residences are Leonard Hall and Ban Righ Hall. The two retail operations are at Mackintosh-Corry Hall and the University Centre.

After certification, the parties met and agreed on a number of positions being either managerial or outside the scope of the bargaining units. None of the aforementioned six individuals currently occupy bargaining unit positions; i.e., the classifications or job titles they have are not bargaining unit positions. All six positions have specific job descriptions, and up until the time of the strike the persons holding those positions were doing the work contained in the job descriptions.

Saskia Wagemans was first employed by Marriott in September of 1993 in the position of Assistant Manager at the University Centre. She replaced Maria Marques who had resigned as Assistant Manager at the University Centre in July of 1993. The reason for the delay in the replacement is that there is a material lull in the summer because Marriott serves University students. Accordingly, she was not replaced until September. That delay is the same in respect of a number of the other individuals.

Sandra Gilmour was first retained by Marriott in October 1993. She was hired as a replacement for Jenny Rabaca, who had resigned as Student Manager at the University Centre. Ms. Gilmour started out as a part-time employee. Marriott had hoped to reduce the management staff at the University Centre. However, it became apparent that they required the position of manager at the University Centre, so Ms. Gilmour was put into the position of replacing Ms. Rabaca sometime around February of 1994. Ms. Rabaca had resigned her position sometime in the summer of 1993. Ms. Gilmour was working in the bargaining unit in a part-time position until February of 1994.

Carole Smith was hired as a secretary in the main office. She was hired in September of 1993 to replace Adele Cummings, who was transferred . to a secretarial position at Leonard Hall to replace Marilyn Wellwood, who had retired at the end of April of 1993. However, the transfer did not take place until the end of August, and Ms. Smith was hired shortly thereafter.

Linda Symonds replaced Alex Fasulo, who was transferred to Winnipeg to work at another one of Marriott's operations in April of 1993. Ms. Symonds was transferred from one of Marriott's operations in Newfoundland (Sir Wilfred Grenville College) in August to replace Mr. Fasulo at Leonard Hall in a managerial position.

Cohn Johnson was first engaged by Marriott in September of 1993. He replaced Ken Knox who resigned in July of 1993 from the position of sous chef, which is not a bargaining unit position. (There is some question whether the sous chef position is a managerial position, but the parties are agreed that it is not included in the bargaining unit.) Mr. Knox is working somewhere else full-time, but is still retained by Marriott on an occasional basis to do sous chef work for functions such as banquets. Prior to this, Marriott retained someone else to do those banquets

Lorna Willis came to Marriott at Queens in July or August of 1993. She is an eight year employee with Marriott. Prior to coming to Queens, she had been working for Marriott at St. Mary's University. She replaced Christine Smith, who had the position of Manager at Marriott's operation at Mackintosh-Corry Hall. Ms. Smith was transferred to a Marriott operation in Toronto in June of 1993.

All six of the persons in dispute were replacements for persons in existing managerial positions. No new positions were created. There has been a reduction in the total complement of managers at Marriott's operations at Queen's University since April 8, 1993, which is the date on which notice to bargain was given in respect of the full-time bargaining unit. There has also been some reduction in the total complement of managers since June 8, 1993, which is the date on which notice to bargain was given in respect of the pan-time bargaining unit. (Counsel for the responding party advised the Board that since April of 1993, two managerial positions have been eliminated at Leonard Hall, two managerial positions have been eliminated at Ban Righ Hall, one managerial position has been eliminated at Mackintosh-Corry Hall, and one full-time supervisor at the University Centre has had her hours cut from full-time to part-time. Counsel for the applicant advised the Board that his client agrees that there has been a reduction in the number of managerial positions. He also advised the Board that although his client is not in agreement with the numbers asserted by Marriott in that respect, it is prepared to refrain from disputing them for the purposes of these proceedings, without prejudice to any other proceedings.)

Mackintosh-Corry Hall is Marriott's largest retail operation. Leonard Hall is its largest residence operation. Lorna Willis occupies the most senior managerial position at MackintoshCorry Hall, i.e., there is no other managerial position overseeing her there. Linda Symonds occupies the most senior managerial position at Leonard Hall. Both Ms. Willis and Ms. Smith have occupied those positions since the dates that they came to work for Marriott.

4. Since time constraints precluded the Board from completing the hearing of this matter on April 27, 1994, and since the Board found it appropriate to adjourn the continuation of hearing scheduled for April 28, 1994, the hearing of this matter continued on May 2, 1994. At the commencement of the continuation of hearing on that day, counsel for the responding party provided the Board with a copy of an application which he had been advised was soon going to be filed by an employee named Victor Carquez, calling into question the legality of the strike vote conducted by the applicant (also referred to in this decision as the "Union"). On the basis of that information, he requested that the instant application be adjourned until such time as a decision had been rendered in respect of that application. After hearing and recessing to consider the submissions of the parties in respect of that request, the Board made the following unanimous oral ruling:

Having regard to all of the circumstances, we find it appropriate to proceed today as scheduled with argument in this case on the basis of the facts agreed to by the parties last Wednesday, during the first day of hearing of this matter. Those facts include an agreement between these two parties that the three conditions set forth in section 73.1(2) of the Act have been satisfied in the circumstances of this case. Although counsel for the responding party has brought to our attention an application which it is his understanding will soon be filed with the Board by Victor Carquez and which may call into question the legality of the strike vote conducted by the Union, there is no certainty that the application will in fact be filed nor that if filed, it will proceed to hearing and ultimately be successful. If that does in fact occur, it may ultimately have some effect on the enforceability of any order which the Union may obtain in the present case. However, we are satisfied that a ruling concerning the propriety of the responding party's using as replacement workers the six persons in question in these proceedings will serve the useful purpose of providing the parties with guidance on that important issue, and will ensure that the Union is not unnecessarily prejudiced by any delay on the part of Mr. Carquez in raising with the Board the legality of the strike vote conducted by the Union on March 8, 1994. Accordingly, the responding party's request that these proceedings be adjourned is hereby denied.

5. Counsel for the responding party then requested the Board to give his client "an automatic right of reconsideration in this matter". After hearing his submissions in support of that request (and advising applicant's counsel that it was unnecessary to hear from him on that matter), we indicated that we were not prepared to rule on that request as we were of the view that it was

premature. We further indicated that if the application succeeded and Marriott was so advised, it could file an application for reconsideration, as could any party in proceedings before the Board. We also indicated that whether such application would be entertained by the Board and ultimately granted was not a matter which needed to be determined at that time.

6. The issue the Board is called upon to determine in these proceedings is whether an employer is legally entitled in a situation governed by section 73.1 to use, in performing the work described in paragraphs 2 and 3 of subsection 73.1(5), persons hired or transferred into pre-existing managerial positions (or other pre-existing positions excluded from the bargaining unit) after the date on which notice to bargain was given, so long as there is no net increase in the size of the employer's managerial complement. Counsel for the responding party urged the Board to give section 73.1 a purposive interpretation which would enable the employer to use managerial replacements to perform such work irrespective of when the replacements were hired (or transferred from other parts of the employer's operation), so long as there was no net increase in the size of the employer's managerial complement. In support of that position, counsel referred to the Board's decision in Canada Stamping and Dies Limited, [1994] OLRB Rep. Mar. 213. (He also referred the Board to comments made by the Minister of Labour in the Legislature on November 28, 1991, a Ministry of Labour News Release dated November 5, 1992, and a summary sheet prepared by the Ministry of Labour regarding "Changes to Proposed Labour Relations Act Reform". However, we have not found those materials to be of any assistance in deciding this matter, as they are quite general in nature and do not address the issue which is before us for decision in this case.)

7. Counsel for the employer argued that "person" is an ambiguous term in the context of subsections 73.1(5) and (6), and urged the Board to construe it as referring to a position rather than an individual. Counsel for the applicant, on the other hand, submitted that there is no ambiguity in the pertinent provisions, and further submitted that they clearly preclude the responding party from using the individuals in question to perform the work of employees in the bargaining units that are on strike. It was his contention that this result flows not only from the plain meaning of the language of the section, but also from a purposive interpretation of that language. In support of his position, he referred the Board to Famous Players Inc., [1993] OLRB Rep. Dec. 1270; The Canadian Red Cross Society Ontario Division, [1994] OLRB Rep. Jan. 34; and Famous Players Inc., [1994] OLRB Rep. Feb. 131.

8. The purpose of section 73.1 was described by the Board as follows in Famous Players Inc., [1993] OLRB Rep. Dec. 1270:

9. The purpose of section 73.1 is to inhibit a struck employer's ability to carry on business. The Legislature has decided that it is appropriate to enhance the union's power to wage a successful strike, by limiting the means open to an employer to resist. When bargaining unit members withdraw their labour, the employer is prohibited from drawing upon specified pools of replacement labour (bargaining unit members who don't support the strike and may wish to work, employees from other locations, managers from other locations, transferees after the notice to bargain is given, the employees of a subcontractor, volunteers, etc.). Section 73.1 is not confined to "strike breakers" in the traditional sense. It encompasses a wide variety of potential sources of substitute labour. It is substitute labour or "replacement workers" that is the focus of the section, and it is in that light that one must consider the concept of bargaining unit work: the Statute prohibits employers from using replacement workers to get the strikers' job done.

10. In Canada Stamping and Dies Limited, supra, the Board was called upon to determine (among other things) whether after notice to bargain had been given, the promotion of a person employed in the bargaining unit to a newly created managerial position contravened subsection 71.1(5). To resolve that issue, the Board was required to determine whether the change in that person's status fell within the purview of the term "engaged". In concluding that it did, the Board wrote, in part, as follows:

The Meaning of Engaged

11. Section 73.1(5) provides that an employer shall not use a person who is "hired or engaged" after, on our facts, the date of the notice to bargain, to do the work of an employee in the bargaining unit which is on strike. It is clear that this section demonstrates a general legislative intention to limit the employer's use of new people to do the work of striking employees. Union counsel referred to this as a "shapshot" taken at the earlier of the notice to bargain or the commencement of bargaining, which is then frozen if a strike takes place. Because of the issues before me concerning occasionals and a newly created position filled by an existing employee, it is necessary to consider what the legislature meant by using the word "engaged" in addition to the word "hired".

12. There are several plain meanings of the word "engaged". They include the idea of occupied or employed in a non-specific sense, e.g., the parties are engaged in bargaining, or the man is engaged in operating a press. As well, engaged has the sense of commitment to a specific end, such as engaged to be married. It also has a common sense [meaning] quite akin to "hired". But presumably the legislature was not just being repetitious, and intended something different than "hired" when it used the phrase "hired or (usually a disjunctive word) engaged". Engaged is used in the passive voice, i.e. the person is engaged by the employer, but the statute does not further qualify the term. It is clear that it was meant, at least, to cover persons who were not paid, as the employer argues. However, there is nothing in the section 10 indicate that it is limited to that meaning. We are of the view that an appropriately purposive interpretation of the word in context includes contracting with a person for a specific task or discrete period of time. We will deal with its application to the people in dispute below.

13. The union argues that a promotion to a newly created position falls within the meaning of the word "engaged

14. The company's position is that Mr. Yeoman was offered a promotion and accepted, and that nothing in the Act prevents him from continuing....

15. Having carefully considered the parties arguments, I am persuaded that the filling of this position, which never existed before, is a circumstance covered by the phrase "hired or engaged". Although the legislation does not list that particular eventuality, we are of the view that it was not necessary. The general word is broad and it is sensible that the legislature did not attempt to anticipate every fact situation. It is very clear that if a new management position had been created and filled by someone not already in the employ of the company, it would be covered by section 73.1(5). We are not of the view that, from a purposive point of view, it should matter whether the position is filled from individuals who had been working in a different position for the employer, or by a new employee. Section 73.1(5) seems squarely aimed at "extra" people, people beyond the employee complement in place at the date of notice to bargain. It is not clear that the section was meant to focus on the individual identity of the person in question. From a purposive point of view, the size of the complement available to do the work of the striking workers seems more central. Creating and filling an extra position in management directly before a strike, especially when the job purports to bring with it work of employees in the bargaining unit, appears to be at odds with the purpose and general scheme of the replacement worker provisions set out above. As it was put in Famous Players Inc., cited above, at paragraph 42, the statute prohibits employers from using replacement workers to get the strikers' job done.

16. Taking this purposive approach, the Board is of the view that although Mr. Yeoman, as an individual, had been hired before the date of notice to bargain, no one had yet been engaged to fill the new management position. We note that the legislature saw fit to specify, as it did not do elsewhere in the statute, that the word "person" in section 73.1 includes a person exercising managerial functions. Mr. Yeoman's engagement in early 1994 to do the duties of the new management position, in our view, makes him a person who cannot be used to do either the work of an employee in the bargaining unit on strike, or the work of anyone who is performing that work. (We note that the issue of the filling of a management position existing at the time of the notice to bargain was not before us, nor is it necessary to decide here). Thus, Mr. Yeoman should not be used to do the work of an employee in the bargaining unit, such as operating the presses, or any of the work ordinarily done by other managers such as Terry Haines, who are doing bargaining unit work during the strike, in light of sections 75.1(5), 2 and 3. If there is work involved in the newly created position that, before its creation, was not ordinarily performed by any other manager, who is doing bargaining work during the strike, Mr. Yeoman is entitled to perform that work during the strike.

17. We respectfully agree with that analysis and conclusion. However, that decision is of only limited assistance in the instant case as, with the exception of Sandra Gilmour whose situation will be discussed below, it is unnecessary for the Board to determine whether the individuals in question were "engaged" by the responding party after notice to bargain was given. Since the word "hired" and the word "engaged" are joined by the disjunctive word "or", it is only necessary for the Board to determine whether a person was "engaged" (within the meaning of paragraph 1 of subsection 73.1(5)) by the employer after the pertinent date if the circumstances do not warrant a finding that the person in question was "hired" by the employer after that date.

18. In the present case, notice to bargain was given in the Spring of 1993. Saskia Wagemans, Carole Smith, and Cohn Johnson each commenced their employment with the responding party in September of that year. Thus, it is quite clear that each of them is a person "hired" by the employer after notice to bargain was given. Accordingly, Marriott is precluded by subsection 73.1(5) from using them to perform the work in question. Moreover, although Linda Symonds and Lorna Willis were hired by Marriott prior to the giving of notice to bargain, they were working at two of the employer's other places of operations and were not transferred to the place of operations in respect of which the strike is taking place until after notice to bargain was given. Thus, the responding party is precluded from using them to perform the work in question by virtue of subsection 73.1(6) which, as noted above, provides in part as follows:

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 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. If the Legislature had intended to permit employers to perform the work described in paragraphs 2 and 3 of subsection 73.1(5) by using persons hired or transferred into managerial positions after the date on which notice to bargain was given so long as the employer did not thereby increase the size of its pre-existing managerial complement, it could easily have so enacted. For the Board to ignore the plain and unambiguous meaning of the word "hired" in para

graph 1 of subsection 73.1(5) and the word "transferred" in paragraph 3 of subsection 73.1(6), and create by means of a strained and artificial interpretation of those terms the scheme advocated by employer's counsel, would be to thwart the obvious intent of the Legislature.

13. Thus, for the foregoing reasons, we are of the view that the responding party is precluded by section 73.1 from using Saskia Wagemans, Carole Smith, Cohn Johnson, Linda Symonds, and Lorna Willis to perform the work described in paragraphs 2 and 3 of subsection 73.1(5) of the Act. It remains for us to determine whether the employer is also precluded by that provision from using Sandra Gilmour to perform that work.

14. As noted above, Ms. Gilmour was hired by the employer as a part-time employee prior to the giving of notice to bargain, and worked in the part-time bargaining unit until February of 1994 (i.e., many months after notice to bargain had been given). In February of 1994, she was promoted to a pre-existing managerial position to replace a Student Manager who had resigned in the summer of 1993 (i.e., after notice to bargain had been given). Thus, she was neither "hired" after the pertinent date (within the meaning of paragraph 1 of subsection 73.1(5) of the Act) nor "transferred" after that date (within the meaning of paragraph 3 of subsection 73.1(6) of the Act). Consequently, the Board must determine whether or not she was "engaged" by the employer after that date (within the meaning of paragraph 1 of subsection 73.1(5)). Adopting an extension of the purposive interpretation tentatively suggested by the Board in Canada Stamping and Dies Limited, supra, might lead the Board to conclude she was not, and that she consequently falls outside the ambit of that provision, as her promotion did not enlarge the size of the employer's managerial complement beyond that which existed at the time notice to bargain was given. Although this is a possible interpretation of that provision, it is not one which we are inclined to adopt, as tt would lead to the anomalous result of the employer being able to perform the work in question using a person promoted out of the bargaining unit and into a managerial position after the date on which notice to bargain was given, but being unable to so use a person hired or transferred into such position after that date. Since we are unable to divine any legitimate policy reason for construing paragraph 1 of subsection 73.1(5) in such manner as to create that anomaly, we are of the view that a more reasonable interpretation of that provision is one which avoids its creation. Thus, in the circumstances of the instant case, we are satisfied that an appropriate purposive interpretation of the word 'engaged' in the context of subsection 73.1(5) warrants the conclusion that when the responding party promoted Ms. Gilmour out of the part-time bargaining unit and into the position of Student Manager in February of 1994, she became a "person ... engaged by the employer after the date on which notice of desire to bargain [was] given", within the meaning of that provision. Consequently, we are of the view that the responding party is precluded by subsection 73.1(5) from using Sandra Gilmour to perform the work described in paragraphs 2 and 3 of that subsection.

15. Thus, it was for the foregoing reasons that the majority of this panel, with Board Member Rundle reserving her decision, made the finding and order set forth in the above-quoted decision dated May 3, 1994 in this matter.

DECISION OF BOARD MEMBER J. A. RUNDLE; June 20, 1994

1. The purpose of section 73.1, which was aptly described by the Board in Famous Players Inc., 1993 OLRB Rep. Dec. 1270 and is included in the majority decision at page 12, bears repeating here:

2. The purpose of section 73.1 is to inhibit a struck employer's ability to carry on business. The Legislature has decided that it is appropriate to enhance the union's power to wage a successful strike, by limiting the means open to an employer to resist. When bargaining unit members withdraw their labour, the employer is prohibited from drawing upon specified pools of replacement labour (bargaining unit members who don't support the strike and may wish to work, employees from other locations, transfers after the notice to bargain is given, the employees of a subcontractor, volunteers, etc.). Section 73.1 is not confined to "strike breakers" in the traditional sense. It encompasses a wide variety of potential sources of substitute labour. It is substitute labour or "replacement workers" that is the focus of the section, and it is in that light that one must consider the concept of bargaining unit work: the Statute prohibits employers from using replacement workers to get the strikers' job done.

3. The Labour Relations Act was premised on a system of economic sanctions in which both parties had much to lose through confrontation and everything to gain by compromise. The former Act restricted the use of economic sanctions but did not prohibit them. The right to strike or lock-out, and the employer's ability to stand a strike are basic features of Ontario's industrial relations systems. In 1968 the Woods Task Force reported that:

As noted elsewhere, the employer's economic sanction equivalent to the union's right to strike rarely is the lock-out. It is his ability to take a strike.... However, it is important to note that an employer's capacity to take a strike depends largely on his right to stockpile goods in advance of a strike and to use other employees and replacements to perform work normally done by strikers. Together with the lock-out, these possibilities constitute the employer's quid pro quo for the employee's right to strike; this is as it should be in our view.

3. The Labour Relations Act as amended by Bill 40 has almost completely eliminated the employer's economic sanction equivalent to the union's right to strike, thereby dramatically altering the balance of power in the Act. The reason given for the realignment of this balance of power was the belief that the failure to put restrictions on the use of replacement workers can lead to bitter and violent confrontations and reduce the willingness of both parties to engage in meaningful collective bargaining. However, I am unaware of any documentation supporting the proposition that Ontario's experience with the picket line is in any way beyond the average. The province of Quebec has similar legislation which was preceded by a series of violent confrontations on the picket line. It is interesting to note that in the time frame in which this particular legislation has been in effect, Quebec has suffered a higher number of strikes than Ontario.

4. In the instant case we have a company which after notice to bargain was given, reduced its complement of managerial positions and over a period of months hired or transferred into those managerial vacancies the employees who are the subject matter of this application. None of the six individuals in question occupy bargaining unit positions and all, up until the time of the strike, were doing the work contained in their specific job descriptions. These employees were never hired as substitute labour or replacement workers as understood in the labour relations sense. At no time immediately before or after the strike did the employer seek to increase the complement of managers within its organization. Rather the employer maintained the status quo that was in existence prior to the commencement of the strike, and ran the operation during the strike utilizing only those people in the pre-existing managerial positions.

5. It was clearly the intent of the Legislature to inhibit an employer's ability to carry on business during a strike, as evidenced by the manner in which section 73.1 is written. Any employer who during the course of a strike has a manager die, discharges a manager for just cause, discharges a manager for a violation of any statute (including the Human Rights Code and the Occupational Health and Safety Act), or has a manager quit, can hire or transfer someone to fill that vacancy, but is prohibited from using him or her to perform any work of the bargaining unit for the duration of the strike. Although that is clearly the intent of the legislation, in my view it makes little labour relations sense and creates an obvious inequity which the Board is unfortunately not in a position to redress.