International Union of Operating Engineers Local 772 v. Labatt's Ontario Breweries, 1994 CanLII 9948

Ontario Labour Relations Board

[1994] OLRB Rep. June 704

0197-94-U International Union of Operating Engineers Local 772, Applicant v. Labatt's Ontario Breweries, Division of Labatt Brewing Company Limited, Responding Party v. Brewery, General and Professional Workers' Union, Inter­vener

BEFORE: Judith McCormack, Chair, and Board Members W. A. Correll and D. A. Patterson.

APPEARANCES: B. Lawson, Peter Yemen and Bill Zinkan for the applicant; L. Bertuzzi, M. Tighe and R. Caron for the responding party; J. Cameron Nelson for the intervener.

DECISION OF THE CHAIR, JUDITH McCORMACK, AND BOARD MEMBER D. A. PATTERSON; June 30, 1994

1. This is an application brought by Local 772 of the International Union of Operating Engineers under section 73.2(12) of the Labour Relations Act for a determination with respect to the use of specified replacement workers. The issue before us relates to the application of section 73.2(3), which provides for certain exemptions to the general prohibitions on replacement workers set out in section 73.1.

2. The applicant union represents ten bargaining unit engineers at the responding compa­ny's brewery in London, Ontario. There are also approximately 350 production employees at this location who are represented by Local 304 of the Brewery, General and Professional Workers' Union which intervened in these proceedings. Some 200 employees at the brewery who are mostly employed in its administration offices are not unionized.

3. The applicant union and the responding company were parties to a collective agreement which expired on December 31, 1993. Notice to bargain was given by the union on November 16th, 1993, and negotiations then led to the appointment of a conciliation officer in February of 1994. Subsequently the Minister of Labour informed the parties that he was not appointing a con­ciliation board and on April 6th, members of the bargaining unit voted to strike by a margin of eighty-nine per cent.

4. On April 11th, the company wrote to the union giving notice of its intention to use spec­ified replacement workers in the event of a strike. It indicated that it would require two engineers to perform the work of members of the union, citing that this was necessary to enable it to prevent a danger to the lives, health and/or safety of Labatt employees, and to prevent the destruction or serious deterioration of the company's machinery and equipment. The union declined to consent to the use of specified replacement workers, as in its view section 73.2(3) did not apply. Among other things, the union asserted that the only reason that the company wished to use the two engi­neers was to keep production lines running, and that this did not qualify for the exemptions in sec­tion 73.2(3).

5. The following day, the union notified the company that failing an agreement to the con­trary at a negotiating meeting scheduled for April 13th, a strike would commence at 12:01 a.m. on Sunday, April 17th. At a secret ballot vote on April 15 employees voted ninety per cent to reject the company's last position, and a strike commenced two days later.

6. Because the company's request for specified replacement workers was based on operat­ing the power plant, much of the evidence before us was devoted to that issue. The power plant at the brewery consists of five systems: the steam plant, the compressor plant, the refrigeration plant, the carbon dioxide recycling system and an electrical generation system. It was common ground between the parties that under the Operating Engineers Act, a second class engineer must be present at all times while the power plant is in operation. They were also in agreement that there were two managerial employees qualified under the Operating Engineers Act in this regard, whom the company was entitled to use to replace striking bargaining unit members under the provisions of section 73.1. The company's view was that to staff the power plant on a twenty-four hour basis, the two managerial employees would have to each work eighty-four hours per week, and that it required two specified replacement workers so that the two managerial employees could work fewer hours. It concedes that it has been using a third engineer from a non-struck location to per­form bargaining unit work since the strike began. It is the use of this third engineer which prompted the union's application for a determination under section 73.2(12).

7. On April 26, 1994, the Board issued the following decision:

This is an application brought by Local 772 of the International Union of Operating Engineers under section 73.2(12) of the Labour Relations Act for a determination with respect to the use of specified replacement workers. Having regard to the onus of proof under section 73.2(15), the evidence and submissions as a whole and the company's evidence and assertions that the power­house is being safely operated with those managerial employees who are also stationary engi­neers, a majority of the Board, Board member Correll dissenting, finds that the circumstances set out in section 73.2(3) do not exist at this point in time. As a result, the company is not enti­tled to use specified replacement workers. If there is any change in circumstances, either party may apply under section 73.2(13) for modification. Our respective reasons will follow.

We now provide our reasons.

8. Since this is the first decision in which the Board has had to consider the application of section 73.2(3), it is useful to examine it in some detail. Sections 73.1 and 73.2 as a whole provide as follows:

73.- (1) No person, employer, employers' organization or person acting on behalf of an employer or employers' organization shall engage in strike-related misconduct or retain the ser­vices of a professional strike breaker and no person shall act as a professional strike breaker.

(2) For the purposes of subsection (1),

"professional strike breaker" means a person who is not involved in a dispute whose primary object, in the Board's opinion, is to interfere with, obstruct, prevent, restrain or disrupt the exercise of any right under this Act in anticipation of, or during, a law­ful strike or lock-out;

"strike-related misconduct" means a course of conduct of incitement, intimidation, coercion, undue influence, provocation, infiltration, surveillance or any other like course of conduct intended to interfere with, obstruct, prevent, restrain or disrupt the exercise of any right under this Act in anticipation of, or during, a lawful strike or lock-out.

(3) Nothing in this section shall be deemed to restrict or limit any right or prohibition contained in any other provision of this Act.

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;

"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;

"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.

(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-(1) 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.

(emphasis added)

9. In The Canadian Red Cross Society, [1994] OLRB Rep. Jan. 34, the Board described these provisions in general terms:

10. 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.

11. 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.

12. The Board also commented on the purpose of these sections:

13. 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.

14. 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.

15. In Famous Players Inc., [1993] OLRB Rep. Dec. 1270, the Board made these observa­tions with respect to the purpose of section 73.1:

16. 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.

17. As the Board noted in Red Cross, supra, however, the ban on the use of replacement workers is not absolute. There are certain persons who are permitted to do bargaining unit work either explicitly or by omission under section 73.1. In addition, section 73.2 sets out first a series of enunciated exceptions when specified replacement workers are permitted in subsection (2), and then the more general exemption in subsection (3) which is at issue in this case.

18. The various provisions of section 73.1 and 73.2 are not necessarily static in their applica­tion. A union must meet certain conditions before the replacement worker prohibitions are trig­gered. Similarly, where an employer wishes to use specified replacement workers, it must satisfy certain requirements which relate to agreements between the parties, give priority for permitted work to bargaining unit members, stipulate terms and conditions of employment, provide for emergencies, and so forth. It is also noteworthy that much of section 73.2 is directed towards encouraging agreement between the parties with respect to the use of specified replacement work­ers. We will return to these other provisions later in the context of arguments by the parties that aspects of these respective requirements were not met by either side to this dispute.

19. Section 73.2(3) makes it clear that while the Legislature has decided to enhance the ability of employees to wage a successful strike, it has also imposed limitations to avoid giving rise to certain certain kinds of hazards. The use of specified replacement workers is permitted to pre­vent danger to life, health or safety, the destruction of serious deterioration of machinery, equip­ment or premises, or serious environmental damage. However, specified replacement workers are allowed in these circumstances "only to the extent necessary to enable the employer to prevent" the described hazards.

20. This rather precise language brings us to the first issue in dispute, which involves the union's contention that the circumstances set out in section 73.2(3) only arise if the brewery contin­ues production. In counsel's view, the language of this provision indicates that the company Cannot bring itself within its ambit if it is in effect creating the exemption circumstances by insisting on maintaining the normal level of production. If this were not so, counsel argued, the company would be able to use specified replacement workers simply to continue production unabated, rather than for the real purpose of section 73.2(3) which was to protect against certain dangers which were otherwise unavoidable.

21. The company took the position that it was entitled to continue its production lines and operate its business as usual. Among other things, counsel commented that the company had reached a collective agreement with its production employees, and they were not on strike. Indeed, the company argued that shutting down the brewery would have the negative effect of causing a lay-off of production and office employees. (We note parenthetically that Local 304 of the Brewery, General and Professional Workers' Union which represents production employees took the position at the hearing that economic consequences such as this should not be a factor in the Board's decision under section 73.2(3).) Counsel was also of the view that section 73.2(3) must be read in context, and that such a context should include the assumption that the employer was entitled to continue operations.

22. Both arguments have some merit, and both are not without weaknesses. In considering the union's position, we return to the Board's observations in Famous Players, supra, to the effect that the purpose of section 73.1 is to inhibit a struck employer's ability to carry on business. With this in mind, it seems unlikely that the intent of section 73.2(3) was to provide specified replace­ment workers to an employer with the effect of enabling it to continue business as usual. The fact that there may be a secondary or "domino" effect upon other bargaining units or employees is not unusual in labour disputes, and one which the Legislature obviously did not include in the list of exemption circumstances.

23. Looking at it another way, it is apparent that the replacement worker prohibitions may have a different impact on a given labour dispute depending on the circumstances. While the gen­eral intent is to enhance the union's ability to wage a successful strike, the effect may vary depend­ing on the bargaining strength of employees quite apart from these provisions. So, for example, employees in a weaker strategic position will presumably find their bargaining power augmented to some degree. At the same time highly-skilled employees occupying more pivotal positions are also likely to derive some benefit from the prohibition in section 73.1. If the overall impact on opera­tions is more dramatic in the latter case, there is nothing about these provisions which suggest that section 73.2(3) was intended to dilute that effect, leaving aside the specified circumstances.

24. It is also difficult to infer from the language of these sections any general assumption that an employer is entitled to operate during a labour dispute. On the contrary, the very compre­hensiveness of the prohibitions in section 73.1 suggests that in many cases, operations will be brought to a temporary standstill. And if the purpose of section 73.1 is to inhibit a struck employ­er's ability to carry on business, one can hardly say that ceasing production is not contemplated by these provisions.

25. On the other hand, we share the company's views that these sections do not give rise to any general assumption that a struck employer should not be able to operate, as long as it can do so without contravening the statute. Indeed, the fact that section 73.1 allows the use of some per­sons in specific circumstances suggests that an employer may well attempt to continue operations, and section 73.2(2) makes this explicit in certain situations.

26. In other words, it is difficult to divine from these provisions an underlying or general assumption with respect to either continuing or ceasing production. As a result, we find it more fruitful to focus on the specific language of the relevant sections.

27. Section 73.2(15), which places the burden of proof on the party alleging that the circum­stances described in section 73.2(3) exist, provides a good starting point for our analysis. The func­tional effect in this case is that the company must establish that specified replacement workers are necessary to prevent the enumerated hazards from arising. Section 73.2(3) then provides that spec­ified replacement workers may be used "but only to the extent necessary to enable the employer to prevent [those circumstances]". This lends some support to the union's position. If the company can prevent the hazards from arising by means other than the use of specified replacement work­ers, it may find it more onerous to establish that such workers are "necessary" as a practical mat­ter. This phrase also reflects a quantitative assessment; that is, that even where specified replace­ment workers are necessary, they can only be used to the extent necessary to prevent the listed circumstances and no more. The result is that the language suggests both that if there are other means available for preventing the hazards, an employer may not be able to establish that specified replacement workers are necessary, and that where it can do so, the remedy permitted will be closely tailored to the specific hazards to avoid the possibility of abuse.

28. This sheds at least some light on the parties' arguments. If a party alleges that specified replacement workers are necessary on the basis of maintaining a certain course of conduct, that party may also have to establish that such course of conduct is necessary within the meaning of sec­tion 73.2(3) as well. Otherwise a party could indeed structure circumstances in a manner which gives rise to the conditions set out in section 73.2(3) and then claim the exemption. This would not be consistent with the purpose of these provisions, which the Board noted in Famous Players, supra, "prohibits employers from using replacement workers to get the strikers' job done".

29. At the same time, there is no doubt that if the enumerated dangers or damage will arise, the section entitles an employer to relief. And although the language indicates that an appli­cant must establish that specified replacement workers are in fact necessary, the extent to which an employer must go in expending other means before coming to the Board for a remedy is not partic­ularly clear. Even if we accept, as we do, that the intent of sections 73.1 and 73.2 is to enhance the impact of the strike sanction, there are areas in which the degree of that enhancement is not spelled out. This has implications not only for whether specified replacement workers are required under section 73.2(3) but how many and in what manner they will be used as well.

30. In this case, the situation is further complicated by the stark contrast in the parties' posi­tions. The union argues for an interpretation of section 73.2(3) which could lead to shutdown of the brewery for the duration of the strike. The company's position would have the result of almost entirely insulating its operations from the strike. Because the difference between their positions in concrete terms is the difference between one engineer on duty and no engineer on duty, there is less middle ground available than in circumstances where a number of employees might be involved, or where the issue is only one of the degree of hindrance posed by sections 73.1 and 73.2.

31. As it turns out, it is not necessary to resolve this dilemma in the matter before us because the company also alleges that if it were to shut down the power plant entirely, that in itself would give rise to danger to life, health or safety, the destruction or serious deterioration of machinery, equipment or premises and serious environmental damage. Thus counsel argues that even if the company ceased production, it would still require an engineer to monitor the power plant systems on a twenty-four basis.

32. We heard extensive evidence in this regard which we need not set out in detail. Suffice it to say that while some of the evidence was inflated, we are persuaded that a total shutdown of the power plant was likely to result in the drying out of packing glands on pipes in the brewery which normally carry ammonia gas in the refrigeration system. We also accept that this is likely to cause leaks of ammonia gas, and that draining the system carries with it its own risks in this regard. In other words, we find as a fact that even if the brewery were to cease production, it would still be necessary to have an engineer on duty to keep at least the refrigeration system operational. We therefore reject the union's argument that no engineers at all are necessary within the meaning of section 73.2(3). The result is that there is no difference in the number of engineers required on duty whether or not the company is in full production or has ceased production on a temporary basis. Because at least one engineer is required in either case, it is not necessary for us to resolve the parties' arguments in this regard.

33. There are other issues in dispute between the parties, however. The company's own evi­dence indicates that it has two managerial employees who are able to operate the power plant safely and legally having regard to both sections 73.1 and the Operating Engineers Act. In fact, counsel for the company conceded that the company can safely operate the power plant with these two managerial employees, but that logically, the company would like to be able to give them more time off and wished to use specified replacement workers as a bridge for this purpose. He asserted, however, that the company would continue to operate with these employees whether or not the Board permitted the use of specified replacement workers as well.

34. We find the evidence in this regard somewhat problematic. Common sense suggests that employees working eighty-four hours per week may find this schedule rather difficult. On the other hand, specified replacement workers are not available under section 73.2(3) on the grounds of inconvenience, adversity or difficulty. It was not suggested that the two managerial employees were so exhausted or would become so exhausted on this schedule that the situation would fall within the criteria in section 73.2(3), and there was no evidence to this effect. On the contrary, one of the managerial engineers testified that the two of them could operate the plant for as long as necessary. The union characterized the company's evidence and argument in this regard as amounting to the proposition that it would be nice to give them some time off. This did, indeed, appear to be fairly close to the company's position. Such a proposition falls short of establishing that the conditions for the use of specified replacement workers have been met.

35. Although our decision in this regard is based on the application of the criteria in section 73.2(3), we also note that the scheduling for the power plant normally involves three employees in a twenty-four period each working eight hours, with a fourth employee to provide for days off. If we were to allow the two specified replacement workers the company requests, the effect together with the two managerial employees would be to virtually nullify the impact of the strike. It is not uncommon for managerial employees to work harder during a strike; this is part of the pressure economic sanctions exert which the theory of collective bargaining presumes will encourage settle­ment. Undermining that pressure by using specified replacement workers to restore the working complement to close to normalcy is not consistent with the general thrust of sections 73.1 and 73.2 either.

36. We therefore concluded that specified replacement workers were not necessary within the meaning of section 73.2(3) at this point in time.

37. There are two other matters raised by the parties that relate to threshold requirements under the replacement worker provisions. The union points to section 73.2(5) which we reproduce again for convenience:

(5) The employer may notify the trade union at any time during bargaining [that it wishes to use specified replacement workers] but, in any event, shall do so promptly after a conciliation offi­cer is appointed.

(emphasis added)

There is no dispute that the company did not give notice to the union in this regard until some two

months after the conciliation officer was appointed.

33. Section 73.2(10) then prohibits the use of specified replacement workers unless, among other things, the employer has notified the trade union that it wishes to do so:

(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.

The union asserts that because the company did not give notice promptly as required, it was not entitled to use specified replacement workers at all.

34. Certainly it is clear that the scheme of section 73.2 is to ensure that the employer gives notice in a timely way so that the parties can then follow the sequence of events set out, including reasonable opportunities for the union to consent to the use of bargaining unit employees and for the parties to reach the kind of agreements contemplated by section 73.2(16) to (21). If the employer could simply give notice at any time, the operation of that scheme which provides for pri­ority for bargaining unit employees and encourages settlement could be impaired to some extent. It is also true, however, that section 73.2(10)(a) does not provide that the notice must be timely, or in accordance with section 73.2(5). On its face., it appears to require only that notice has been given. Moreover, it seems unlikely having regard to the seriousness of the hazards set out in sec­tion 73.2(3) that the Legislature intended that if an employer was late in giving notice, specified replacement workers could not be used even to prevent danger to life, health or safety, for exam­ple.

35. In the case before us, we have already concluded that the employer has not met the cri­teria of section 73.2(3) in any event. As a result, it is unnecessary for us to comment definitively on the legal impact of a late notice. However, we would observe that at the very least, a late notice may undermine the credibility of an employer's assertions with respect to the necessity of specified replacement workers, and may add to its practical evidentiary burden in circumstances where it may already be carrying the onus of proof pursuant to section 73.2(15).

36. Finally, the company asserts that the union is not entitled to the prohibition against the use of replacement workers in this case, on the grounds that the bargaining unit was not on strike within the meaning of section 73. Again for convenience we reproduce those provisions:

(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.

37. Section 73.1 only applies, to a lock-out or a lawful strike, and thus the company argues that unless the conditions have been met for the bargaining unit to be considered on strike, there is no prohibition against replacement workers. Specifically, the company asserts that because the notice given by the union was several days prior to the actual withdrawal of services by employees, the union had not given the employer notice in writing that the bargaining unit "is on strike". Rather, the union had only given notice in writing that the bargaining would be on strike on a date in the future. To meet the conditions in this section, the company argues that notice can only be given after the strike has begun.

38. We do not find this proposition particularly attractive. It seems to us that practical labour relations are aided by advance notice of a strike, and that common sense suggests that a notice to the employer after employees have left their work is not only redundant, but rather absurd. Presumably the employer will have already noticed their absence. On the other hand, the wording of this provision appears to lend some support to the proposition. Moreover, in this case the union's advance notice was not unequivocal. It indicated that a strike would only occur if agreement was not reached at a meeting scheduled between the time of the notice and the day the strike was to commence. It was thus quite possible that employees would not actually go on strike on the date in the notice.

39. At the same time, the company could not point to any unfairness, prejudice or the ero­sion of any substantive purpose as a result of the union's advance notice. Indeed, it was common ground between the parties that the purpose of this provision was to prevent the application of sec­tions 73.1 and 73.2 to strikes not authorized by the employees' bargaining agent, a matter which was not in issue in the circumstances before us. In that sense, the company's objection was rather technical. With this in mind, we note that the union included in this application a statement that the union commenced a strike on April 18th, a statement which was in writing and delivered to the employer after the strike commenced. In the particular circumstances before us, we find that this fulfils the requirement in section 73.l(3)(b). As a result, we reject the company's argument that the bargaining unit is not on strike, and we find that the prohibitions in section 73.1 apply.

40. For all these reasons, we concluded that the company had not satisfied the onus upon it as a result of section 73.2(15) and was therefore not entitled to use specified replacement workers at this point in time.

ADDITIONAL COMMENTS OF BOARD MEMBER W. A. CORRELL; June 30, 1994

1. The award in this case recognizes that the purpose of the "replacement worker" sec­tions of the Act is to inhibit an employer's ability to continue operations and production. In this case however the employees, who are operating engineers, do not produce anything. Their sole function and responsibility flows from the Operating Engineers Act i.e. "be responsible for the safe operation of the plant" and "maintain a close watch on the condition and repair of all equipment in the plant" as well as "take such measures as are necessary to prevent any immediate danger".

2. The award also recognizes that even if the production departments were completely shut down it would be necessary to have second class operating engineers at the plant (see para. 27). This requirement flowing from another piece of legislation would have put this Board in an interesting quandary in trying to administer or rule on section 73 of the Labour Relations Act.

3. This panel fortunately did not have to face that dilemma since there were management employees with the required qualifications to carry out the company's responsibility under the Operating Engineers Act and additional replacement workers were not required.

4. It is also fortunate that all matters have been resolved. I for one would not want to be part of a decision that put in jeopardy the safety of others both inside or outside of the plant. As noted in the award the two management replacement workers would be put under strain by work­ing 84 hours per week. The longer that situation continued the more risk there would be that one or both, through sheer exhaustion or illness would not be able to respond alertly to their responsi­bilities. Testing the reality of whether or not this was an unsafe situation is not a good way to man­age.

5. For these reasons I have concerns about how well this section was crafted as we see problems unfold that have not been anticipated or thoroughly thought through.

6. Finally the company's contention that it was not notified properly in accordance with the Act that "the bargaining unit was on strike" should not be brushed aside. I do not join with the majority in this award on that issue. The Act is quite specific and it is a carefully chosen phrase and a deliberately defined procedure. Without it several consequences could flow that could cause harm to both parties. If only a part of the bargaining unit decided to strike, it would seem that the bargaining agents would not be happy with part of their unit striking and part trying to gain access to the workplace. It is doubtful if the agent would be in full control of any continued collective bar­gaining if their member support was seen to be divided. The replacement worker section of the Act would be meaningless in a situation where some workers were available for some of the work and others not available. None of these consequences came about in this instance and once again we were fortunate that we or the parties did not have to deal with that kind of confusion. We should not however accept that the manner in which the union notified the company of its intention to strike in this instance was in full compliance of the Act.