National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 636 v. Canada Stamping and Dies Limited, 1994 CanLII 9976

[1994] OLRB Rep. March 213

3842-93-U National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 636, Applicant v. Canada Stamping and Dies Limited Responding Party

BEFORE: K. G. O'Neil, Vice-Chair.

APPEARANCES: Lisa Kelly, Ron Joyal and Sandra Sherman for the applicant; Robin B. Cumine and Bob Hughes for the responding party.

DECISION OF THE BOARD; March 2, 1994

1. This is an application pursuant to section 91, alleging breaches of sections 3, 65, 67, 71 and 73.1 of the Labour Relations Act. These are the Board's reasons for its decision dated February 22, 1994, which allowed the complaint in part.

2. The facts of this case, which were not largely in dispute, raise questions about the applicability of section 73.1, the replacement worker provisions, to part-time and occasional employees who are not part of the bargaining unit, as well as to an employee promoted out of the bargaining unit to a position created after the date of notice to bargain. The union pleaded a number of sections of the Act, and alleged anti-union motivation. As will be seen below, however, the nub of the issue relates to section 73.1, which provides as follows:

73.1- (1) In this section,

"employer" means the employer whose employees are locked out or are on strike and includes an employers' organization or person acting on behalf of either of them; ("employeur")

"person" includes,

(a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and

(b) an independent contractor; ("personne")

"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinarily perform their work. ("lieu d'exploitation e l'egard duquel la greve ou le lock-out a lieu")

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

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 jn 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.

Section 73.1(5) is the most centrally relevant to the circumstances of this case, which deals with one plant location.

3. The company produces a variety of metal stampings and dies for the automotive, appliance and other industries. The applicant union has had bargaining rights at the company's stamping plant for over forty years. It was agreed for the purposes of this proceeding that part-time employees, including occasionals, are not employees in the bargaining unit, although the union may originally have had bargaining rights for them.

4. Notice to bargain was given on August 24, 1993, after which bargaining started. Bargaining did not result in a collective agreement and a strike vote was conducted on October 18, 1993. All eight people in the bargaining unit voted at the meeting where the strike vote was taken, by secret ballot, and a margin of more than 60% in favour was obtained.

5. A "no-Board" report was given on November 8, 1993. A lawful strike commenced on February 7, 1994.

6. The employer suggested that the Board should find that the preconditions for the application of section 73.1 did not apply. Counsel says that a number of aspects of the facts about the vote support this, including the length of time between the vote and the calling of the strike, as well as the fact that the notice of the meeting where the vote was held did not say that a vote would be held, and the fact that the ballot only asks whether a voter is "in favour" of striking, rather presumably than authorizing a strike.

7. In considering the argument about the preconditions to the application of the section, we note that the notice of the meeting was posted prominently between October 12 and the date of the vote, October 18. As well, the bargaining unit employees had been told verbally by the union's Plant Chairperson, Sandra Sherman, that the meeting would be to determine if they were going on strike. More fundamentally, the whole bargaining unit came and voted. No one complained that they should have been included and were not. There was one person who had been on lay-off, but since his right to recall had expired, Ms. Sherman determined that he was no longer in the bargaining unit. The employer did not suggest this person should have had the opportunity to vote. In any event, given the breadth of the margin in favour of the strike his vote would not have affected the margin of 60% even if it had been against.

8. As to the question of the timing of the vote in relation to the start of the strike, there is no indication in the Statute that the vote has to be closer to the calling of the strike than this was, just under four months. Further, there was no indication that any event bearing on the employees' opportunity to vote on the issue occurred between the holding of the vote and the calling of the strike. If a lapse of time, without more, between the authorization and calling of a strike had been intended to be a bar to relief, it would have been up to the legislature to make that clear.

9. As to the wording of the ballot, it is clear in our view that voters were being asked for a strike mandate. The statute has no specific requirement as to what question the voters will be asked to authorize a strike. In the circumstances, we are of the view that the preconditions set out in section 73.1(2), which incorporate those in section 74(4) and (6), were met.

10. There are two general areas which deserve some attention before we turn to the specific disputed individuals: the meaning of the word "engaged", and of the phrase "the work of an employee in the bargaining unit" in section 73.1(5).

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. Union counsel urges the Board to take a purposive approach and find that the wording "engaged" is broad enough to cover the creation of a new position or calling in occasionals which has the result of increasing the employer's complement available to do bargaining unit work. Referring to Canadian Red Cross, Board File No. 3767-92-U decision dated January 10, 1994, as yet unreported [now reported at [1994] OLRB Rep. Jan. 34], and the Interpretation Act, section 10, counsel says that a fair large and liberal reading of the statute should lead the Board to accept the union's argument.

13. The employer argued that "engaged" was meant to provide for unpaid workers who might not technically be hired. Thus there is a pairing in section 73.1(5): "hired" is paired with paid workers, and "engaged" with unpaid. We are urged to find that the initial hiring date is determinative on the facts before us.

14. 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 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 to 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.

The work of an employee in the bargaining unit

15. The question of how to give meaning to the phrase in section 73.1(5) "the work of an employee in the bargaining unit" also deserves some general attention. We note firstly that the legislature did not use the wording "bargaining unit work", words sometimes associated in labour relations parlance with the idea of work reserved to the bargaining unit. Rather, the legislature used wording which appears broader as it focuses on the work of the employee, i.e. what he or she actually has done, which may be more or different than what is mentioned in the collective agreement. Thus, it is our view that the terms of the collective agreement, while obviously centrally relevant to what that work might be, are not the only relevant matter. It is also important to look at what work the bargaining unit employee was doing, whether or not it is specifically addressed by the collective agreement. See also Famous Players Inc., [1993] OLRB Rep. Dec. 1270 at paragraphs 43 and 44, and Famous Players Inc., Board File No. 3252-93-U, decision dated February 4, 1994, as yet unreported [now reported at [1994] OLRB Rep. Feb. 131].

16. We also observe that part of the legal context in place at the time of the Bill 40 amendments is the arbitral jurisprudence on the subject of work in a bargaining unit, and Board decisions in other contexts, such as section 108(2). This jurisprudence has, by and large, discounted incidental functions as significant in its determinations. We are not of the view that the legislature intended to capture every action, no matter how incidental to the person's normal job in section 73.1(5), 2 and 3. An approach which looks to the substantive, regular content of the work of an employee in the bargaining unit is the most appropriate in our view.

17. As to functions performed by both employees inside and outside the bargaining unit, they may be the work of both. In order to give a sensible interpretation to the section as a whole, it may be appropriate to determine where the work of an employee in the bargaining unit leaves off and that of an occasional begins by reference to the relationship if any between the work of each type of employees, including the relative proportion of work done in normal, non-strike periods.

18. The collective agreement here provides a recognition clause which refers only to a Board certificate, apparently from 1949, which neither party could produce. The other portion of the collective agreement which is of assistance is Appendix B which sets out the classifications in the bargaining unit as follows:

TOOL AND DIE DESIGNER

TOOL AND DIE MAKER

MILLWRIGHT

PRESS MECHANIC

BLANKING PRESS OPERATOR & SET-UP

MACHINIST

GENERAL LABOUR & Material Handler

MAINTENANCE HELPER

A) PRESS OPERATOR 2ND OPERATION

B) MACHINE OPERATOR

19. There was evidence that bargaining unit employees performed driving from time to time, when there was a rush errand or delivery. Normally the company uses an outside carrier to do its driving. Salaried (management) personnel, including the shipper and receiver, occasional employees, as well as a variety of bargaining unit workers have driven for the company.

20. Sandra Sherman, the union's plant chairperson, testified that in addition to her normal job operating a press, she also cleaned the factory, drove truck and dealt with quality assurance files from time to time. She considered the work of operating a press to include packing, and rework of things coming off the press. Other bargaining unit employees also do packing, including counting and weighing, driving the towmotor to empty scrap bins, setting up jobs on the machines, and drafting. Salaried people can also be seen doing these jobs from time to time. Ms. Sherman's estimate was that salaried personnel might work a press on average one to two hours of the bargaining unit shift to adjust a machine, change its set-up, or for training purposes. She has also seen salaried personnel drive forklift.

21. Occasional employees have also done driving, rework, and deliveries. Ms. Sherman testified that before the last year, part-time people either stayed long enough to "make" the union, i.e. 60 days, or were laid off. There is also one 'regular' part-time employee who attends at work every day for part of the day. Company counsel notes that the company has hired people other than the eight people who voted for a long time, and the work they did was considered their work, not bargaining unit work.

22. Bob Hughes, the company's General Manager, testified that since the strike the shipper and receiver has been doing duties much the same as before the strike, i.e. shipping and receiving goods, moving raw material into the warehouse, assisting with the set-up of equipment and driving on occasion. He has also monitored the operation of machines, which was work previously done by members of the bargaining unit. Although nothing was pleaded in regards to the shipper and receiver himself, the union argued that evidence of what he was doing during the strike was relevant to whether any of the people complained of were doing work contrary to 73.1(5) 3, which limits people hired or engaged after the notice to bargain from "freeing up" others to do bargaining unit work.

23. With these general considerations in mind, we will turn to the specific individuals in issue.

Steve Yeoman

24. Steve Yeoman was a bargaining unit tool and die designer, functioning as a lead hand, until his voluntary promotion on January 3, 1994 to a newly created position entitled Tool and Die Coordinator. Notice of the promotion was given to the union on December 20, 1993 and the general areas of responsibility of the new position were set out. These included supervisory and design work as well as continuing to do tool and die work that Mr. Yeoman had performed while in the bargaining unit. The removal of certain work from the bargaining unit was grieved by the union. This has not yet been resolved, and the union has indicated it will pursue the matter at arbitration.

25. Prior to Mr. Yeoman's promotion, the management staff consisted of a general manager, a plant supervisor and a customer service and quality assurance person. Prior to the creation of Mr. Yeoman's new position, the administrative portion of his job was done primarily by the Plant Supervisor, Terry Hainer. The General Manager, Bob Hughes, decided to create the new position sometime in the fall of 1993, when he saw that many administrative duties were not getting done because of growth in business. Mr. Hughes testified that in the last 60 days, which would mean since mid-December, he had taken orders for five new dies, which would alone be equal to 30% or more of the company's work in 1993. Orders were "way up". In addition, Mr. Hughes testified that more work was necessary to develop a program of upgrading and dealing with problems with existing dies and their maintenance. This was the result of the fact that they would be used more with the increased volume, which had recently necessitated the creation of a second shift. The company also wants to do the groundwork to make it possible for it to bring "in-house" more of the work it is currently contracting out. Thus the new position includes managing the outside die contracts, as well as involving Mr. Yeoman more in engineering matters and customer meetings about what the dies and products will be. Some of the quoting had been done by Mr. Yeoman while he was in the bargaining unit, but in the future, he will be in charge of entire die making projects, from quoting to finishing.

26. Mr. Hughes said that he first learned of the replacement worker provisions in the fall of 1993, at which time he only had a general awareness of them. He assumed that managers could work during a strike. In the two weeks leading up to the strike, Mr. Hughes obtained more specific legal advice. When asked when he learned of the union's positive strike mandate, his answer indicated sometime after February 2, 1994. Mr. Hughes denied promoting Mr. Yeoman in part to keep him working during the strike, asserting that the company expected to settle the negotiations without a strike. Mr. Hughes said that Mr. Yeoman was moved purely for business reasons and to give him an opportunity for growth. It was clear from Mr. Hughes' evidence that the company is intending to continue operating during the strike, and that all the managers are working during the strike. Continuing to operate would not, in the Board's view, be possible without the performance of bargaining unit work.

27. The union argues that a promotion to a newly created position falls within the meaning of the word "engaged" because, when looking at the mischief the legislature was addressing, it could hardly have been its intention that the company could create new management positions and fill them from the bargaining unit to get it through the strike. Mr. Yeoman's promotion was an attempt to provide the company with additional management people, including one with bargaining unit skills and experience, to do the work of the bargaining unit during the strike, submits counsel.

28. The union's position is that the company is entitled to create new management positions after the notice to bargain, but cannot use them during the strike. Referring to section 73.1(6) to support her argument about section 73.1(5), counsel observes that the whole section is aimed at limiting the employer's pool of available labour.

29. The union also alleges that the promotion of Mr. Yeoman was made in bad faith, and is thus contrary to sections 15, 65, 67 and 71. The union says there are grounds for finding motive on the facts of this case, particularly because of the timing of the creation of the new position. The union challenges the logic of creating a position after the strike vote unless it was because of it, at least in part. Union counsel argues that since the onus of proving that the company is not thinking up schemes to avoid the new provisions is on the company, it must give a more convincing explanation than it did. Counsel refers in particular to the fact that Mr. Hughes testified that he heard about the order for five new dies in December or January, which means he is not even sure he had heard about the major increase in work before he created the new position.

30. The union also argues that the position is not bona fide management in that Mr. Yeoman supervised people as a lead hand prior to his promotion, and there is no other duty in the new position which would require the job to be out of the bargaining unit. A similar position is reflected in the grievance lodged against the new position.

31. As remedy, the union asks the Board to return Mr. Yeoman to the bargaining unit until the resolution of the strike or grievance. Counsel argues that by his very existence other managers are freed up to do more bargaining unit work. He should be stopped from doing both bargaining unit work and other managerial work, asserts counsel.

32. The company's position is that Mr. Yeoman was offered a promotion and accepted, and that nothing in the Act prevents him from continuing. Company counsel argues that the reasons Mr. Hughes gave for the promotion went completely unchallenged by the union and thus there is no basis for a finding of anti-union motivation. Counsel underlines that the grievance is not the issue before the Board, and that this proceeding should not be allowed to eclipse the collective agreement's ongoing grievance procedure.

33. Company counsel argues that the legislature would have had to make it much clearer for the Board to find that promotions out of the bargaining unit were not allowed after the notice to bargain. He argues that would be adding a new class of employee to the list of exclusions and that it would be torture to the wording of the Act to move Mr. Yeoman out of his position.

34. 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.

35. 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.

36. I am not of the view that the evidence supports a finding of breach of any of the other sections pleaded in respect of Mr. Yeoman and those allegations are dismissed.

37. It should be noted that nothing in the above remarks is intended to reflect in any way on the outstanding grievance, which I specifically refrain from commenting on~ except to say that the issue before me appears to be a very different one from that under the collective agreement.

Greg O'Neil

38. Greg O'Neil was hired on February 1, 1994 as a tool and die maker to fill in until a new tool and die maker could be hired to make up for the partial vacancy caused by Mr. Yeoman's promotion as well as an increase in volume in the tool and die shop. He worked from February 1 to February 7 in the tool and die department. The parties do not yet treat him as a member of the bargaining unit, as the collective agreement provides that it is only after 60 days that he would be required to join the union and be in the bargaining unit. Since the strike started he has driven a truck, which the union alleges is work done by employees in the bargaining unit. (Although Mr. O'Neil has also worked at a plant to which the company sub-contracts work, the union did not challenge anything related to Mr. O'Neil other than his having driven for the company). The union says that the use of Mr. O'Neil is a clear case of breach of section 73.1(5), since he had no employment history with the company at all prior to the notice to bargain.

39. In the alternative, the union argues that Mr. O'Neil is doing the work of the shipper and receiver when he is driving, and the shipper and receiver is a person who is doing bargaining unit work. Although the union is not in this proceeding challenging the right of the shipper and receiver to do bargaining unit work, it does say that while he is doing bargaining unit work, no one is allowed to do his work, which would include driving truck. Thus, the union says Mr. O'Neil should not be used either because of section 73.1(5), 2. or 3.

40. As to the company's argument that there is no collective agreement bar to managers or other non-bargaining unit people doing bargaining unit work, union counsel says that it does not change the nature of the work for the purposes of section 73.1. Counsel urges us to find that Mr. O'Neil is an accretion to the work force in breach of section 73.1.

41. The company maintains that the evidence does not support a finding that driving is bargaining unit work. It is usually done by outside carriers. The only exception is for rush deliveries or other errands. One should not say that work that is done once by a bargaining unit person is thereby the work of a person in the bargaining unit. Driving, says counsel, is not the work of an employee in the bargaining unit, nor does the collective agreement provide a bar to anyone doing that work. Furthermore~ the company says the evidence does not indicate that the shipper or receiver was freed up for even one minute.

42. We are of the view that driving is work that is incidental to the work of employees in the bargaining unit, and that the evidence did not indicate that it is work ordinarily performed by anyone, including the shipper and receiver. It is ordinarily performed by an outside carrier. Thus we are not of the view that it is work covered by either section 73.1(5), 2 or 3.

43. The complaint in relation to Mr. O'Neil is dismissed.

Sherry Hainer

44. Sherry Hainer is the wife of the production supervisor. She has worked on and off for the company as a casual or occasional employee since before the notice to bargain. Since August 1993, she worked a total of 200 hours, in 9 different weeks. Her minimum hours in those 9 weeks was 5.5 and the maximum 37.35. There are often gaps between stints of working. For instance, Ms. Hainer worked 19.2 hours in the week of September 21 and did not work again until October 26. There is no indication of what hours, if any, she worked after November and before the strike. When she does not work, her name does not appear on the schedule. There appears to be no regularity to her work, and no task which is predominately the focus of her work.

45. Ms. Hainer has worked during the strike, operating small machines, doing rework, sorting and packing. This is work that has been performed by members of the bargaining unit on strike, as well as by casual employees on occasion, for example when there is a backlog.

46. Mr. Hughes testified that when the company uses part-time or occasional employees, "it is not a regular thing", with the exception of one employee who has fixed hours, who is not here in issue. The type of work Ms. Hainer has done in the past has included sorting and rework, which Mr. Hughes said are things gone wrong, which do not necessarily occur regularly. He said that someone like Ms. Hainer would not have regularly assigned hours, "she would just be called in in each situation."

47. The company has no obligation to call casual employees, and they are free to decline work. There is no guarantee of recall, but there is no lay-off notice or other similar documentation when they finish a task. Ms. Hainer works substantially more than other occasional employees, some of whom have worked only once or twice cleaning floors, for example.

48. The company argues that Ms. Hainer was engaged long before the notice to bargain, that she was in fact working in August, 1993, and had a pattern of employment consistent with what she is doing during the strike. Counsel suggests the Board would have to write something into the collective agreement or the Act which is not there in order to prevent her (and any other occasional) from working during the strike. The Act does not govern the rights of non bargaining unit employees who work at that location, in counsel's submission. Their work has included bargaining unit work before the strike, and should include it during the strike as well. The company maintains that the replacement worker provisions were not intended to disrupt what was there before~ but to prevent changes to the status quo. The company underlines that these are employees of longstanding and should not be considered replacement workers at all.

49. The union argues that, although Ms. Hainer works more than the other casuals and is a more visible presence around the workplace, the principles which apply to her and the other casuals are the same. There are no obligations between the parties between periods of work; they should be considered to be engaged afresh when they take on a new commitment for the company. Where there was a month gap between the end of September and the next time Ms. Hainer worked, counsel argues that the company should not be able to use Ms. Hainer either.

50. The company argued in reply that the union is trying to force these people onto a strike, with no participation in the strike vote, which would be directly contrary to the purpose of the Act.

51. We have considered the evidence as a whole, and are of the view that Ms. Hainer is a person who was engaged since the date of the notice to bargain. Although Ms. Hainer has been used in the past, the evidence is clear that jt is to "fjll in" and as an adjunct to the regular complement of people for a specific period or task. It is to cover events such as "things gone wrong", in Mr. Hughes' words. We are of the view, that with a purposive view of the statute in mind, Ms. Hainer was engaged anew each time she committed to a specific task or period of time. The nature of the arrangement is made more clear by the fact that she could turn down any engagement offered to her. On the evidence before us, she was specifically engaged after the notice to bargain, i.e. at the commencement of the strike, to do the very work the bargaining unit employees would have been doing if they were not on strike. It cannot be said that Ms. Hainer was doing "her own work", as the evidence indicates it has always been work which was defined by work in excess of the work done by full-time bargaining unit workers. Nor does the work during the strike coincide with any pre-existing pattern. We note there is no evidence that she has worked regularly since November despite orders being way up, and the plant being so busy that it needed a second shift. There was no regular pattern of work reserved to Ms. Hainer, nor evidence of her use to staff the plant on some kind of ongoing basis, as in other industries where casual and other part-time employees are used to staff the normal work of the enterprise, if on a more flexible basis of scheduling. The circumstance of being offered a new engagement at the outset of the strike to do the normal work of the bargaining unit, rather than excess or things gone wrong, is one that we find is in breach of section 73.1(5).

John Hewitt

52. John Hewitt is a son of the owners of the company and a full-time student. He, too has worked as a casual employee prior to the strike, but less often than Ms. Hainer. From time to time, the company has hired sons and daughters of both management and bargaining unit employees to do casual work including cleaning floors and other work. Since the start of the strike Mr. Hewitt has done die sharpening in the machine shop, work which has previously been done both by himself and bargaining unit employees. Mr. Hewitt is called in when there is a backlog of work or the unavailability of someone else.

53. Union counsel argues that Mr. Hewitt is only called in when something unforeseen or a special project comes up. Counsel says there is something finite to each task or engagement, and that each time they are called in for a task, they are newly engaged, within the meaning of section 73.1. Counsel cites the examples in the evidence of the use of sons and daughters: three Saturdays to scrape floors, filling in for a sick leave. Counsel says it would be contrary to the purpose of the Act to say that a company could operate during a strike by virtue of calling in every person who ever worked for it.

54. Union counsel notes that Mr. Hewitt has only worked about three times in the last six months, and argues that in light of the reverse onus, the company has faded to discharge its onus to prove that he was not engaged since the date of the notice to bargain.

55. The employer argues, as for Ms. Hainer, that Mr. Hewitt is an existing employee who should be allowed to work during the strike. Counsel urges us to limit the categories of people the company cannot use to those explicitly set out in the statute.

56. We are of the view that the considerations which apply to Ms. Hainer apply ever more so to Mr. Hewitt, since his attachment to the workforce here is very tenuous. We find he is a person engaged since the notice to bargain, and is therefore a person who is not to do the work of an employee in the bargaining unit, or that of anyone doing that work for the duration of the strike.

Summary

57. Having considered the evidence and arguments of the parties the complaint is allowed in respect of section 73.1(5) except with respect to driving duties, and is dismissed in all other respects.

58. The following are the Board's orders:

59. The employer is prohibited from using Steve Yeoman, Sherry Hainer and John Hewitt to do the work of employees in the bargaining unit on strike, or the work ordinarily done by anyone who is performing the work of striking employees. However, driving is not a task which falls into either of those categories.

60. The employer is to mail to each of its employees a posting in the form attached, within one week of its receipt of this decision.

61. The employer is to cease and desist from using replacement workers in breach of section 73.1

62. All other matters of remedy are remitted to the parties for their consideration. The Board remains seized to deal with any difficulty implementing this decision or any failure to agree on any matter relating to any further remedy.

Appendix 'A'

Labour Relations Act

NOTICE TO EMPLOYEES

By Order of the Ontario Labour Relations Board

We have mailed this Notice in compliance with an Order of the Ontario Labour Relations Board. After a hearing in which the Company and the trade union participated, the Ontario Labour Relations Board found that we violated the Ontario Labour Relations Act by using Steve Yeoman, Sherry Hainer and John Hewitt to do work of employees in the bargaining unit during the strike. The Ontario labour Relations Board also found that using Greg O'Neil to do four hours of driving was not a breach of the Act.

Canada Stamping and Dies Ltd.

Per: ______________________________

(Authorized Representative)

This is an official notice of the Board.

Dated this 2nd day of March, 1994.