Marriott Corporation of Canada v. Ontario Public Service Employees Union, Local 241, 1994 CanLII 9980

Ontario Labour Relations Board

[1994] OLRB Rep. November 1558

2490-94-M Marriott Corporation of Canada, Applicant v. Ontario Public Service Employees Union, Ontario Public Service Employees Union, Local 241, Responding Party v. Mohawk College of Applied Arts and Technology, Intervenor

BEFORE: Judith McCormack, Chair, and Board Members S. C. Laing and K. Davies.

APPEARANCES: John Barrack, David Smith, Tom Mitchener and Sandra Wilson for the applicant; S. B. D. Wahl, E. Brennan, April Schaap and Daniel Ahana for the responding party; Dolores Barbini, Zaki Ullah, Ron Baskin and Kent Turdry for the intervenor.

DECISION OF JUDITH MCCORMACK, CHAIR, AND BOARD MEMBER K. DAVIES;

November 29, 1994

1. This is an application for determinations with respect to the use of replacement workers under section 73.2(12) of the Labour Relations Act. The applicant company, Marriott Corporation of Canada ("Marriott") takes the position that specified replacement workers are necessary to prevent danger to life, health and safety under section 73.2(3) in connection with an anticipated strike of its employees. The responding union, the Ontario Public Service Employees Union, Local 241 ("OPSEU") opposes this application.

2. Marriott operates a cleaning company which provides services to the intervenor, Mohawk College of Applied Arts and Technology ("Mohawk"), a community college in the Hamilton area. Prior to 1979, Mohawk used its own employees who were covered by a support staff collective agreement with OPSEU to clean the college. After a strike in 1979, cleaning services were contracted out and Marriott has held the contract in this regard for the last nine years. OPSEU has represented Marriott employees assigned to Mohawk since January of 1991.

3. There are 28 full-time and two part-time employees of Marriott who clean the Fennell and Wentworth campuses of Mohawk. The most recent collective agreement between Marriott and OPSEU expired on June 1, 1994. The parties entered into negotiations for a renewal agreement in June of this year, and conciliation meetings were held on September 22, 1994 and October 7, 1994. At the latter meeting, Marriott tabled its final offer and a no-board report was issued on October 11, 1994. Three days later, employees voted to reject Marriott's final offer and authorized a strike by a majority of 93%. OPSEU then advised Marriott in writing that a strike would commence at 12:01 a.m. on October 31, 1994. There was no dispute that sections 73.1 and 73.2 applied in these circumstances.

4. The strike deadline was extended by the union to 11:00 p.m. on October 31st for the purpose of allowing the Board an opportunity to complete the hearings on Marriott's application and to issue a decision in this regard. In the afternoon of October 31st, the Registrar advised parties by facsimile transmission that the Board had unanimously endorsed the record as follows:

Having carefully considered the evidence and submissions of the parties, and on the basis that there are the equivalent of four managerial personnel entitled and able to perform the work of employees in the bargaining unit in accordance with the union's acknowledgement, we find that specified replacement workers are not necessary to enable the employer to prevent danger to life, health and safety. Our reasons will follow.

We now provide our reasons.

5. Sections 73.1 and 73.2 read 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;

"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 lock-out 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)

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

7. 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.

8. 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.

In the same case, the Board also commented on the purpose of these provisions:

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

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

39. Similarly, in Famous Players Inc., [1993] OLRB Rep. Dec. 1270, the Board made these observations with respect to the purpose of section 73.1 in more specific terms:

40. 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.

41. The first case in which the Board addressed section 73.2(3) in particular was Labatt's Ontario Breweries, [19941 OLRB Rep. June 704 where the Board noted as follows:

42. 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.

43. With this context in mind, we turn to the case before us. Marriott identified five different areas in which it asserted that cleaning services were necessary during a strike to prevent a danger to life, health and safety: the washrooms, the kitchen areas, the childcare centres, garbage collection and emergency services. We heard extensive evidence about the work involved in each of these areas and the minimum standards of cleanliness required, which we find unnecessary to recite in detail. Suffice it to say that we were convinced that should Mohawk continue to operate at full capacity during a strike, some cleaning would be required to prevent the build-up of bacteria and parasites and the attendant risk of communicable and other diseases, to reduce the attraction of vermin and to minimize slipping and falling hazards.

44. However, the union argued among other things that it was not necessary for Mohawk to operate during the strike. Counsel asserted that closing the school could not be considered to result in any danger to life, health or safety, since the school closed regularly during vacation periods. In this regard, counsel relied upon Province of New Brunswick and C. U. P. E., New Brunswick Council of School Board Unions (1979), [1980] N.B.L.L.C., Part 2,14011 (P.S.L.R.B.) where the New Brunswick Public Service Labour Relations Board found that it would be necessary to maintain heat and a degree of sanitation services if schools operated during a strike. Nevertheless, it declined to designate employees normally performing this work as "necessary in the interest of the health, safety or security of the public" because the schools could be closed without resulting in health, safety or security problems.

45. Alternatively, counsel asserted that those of Marriott's managerial personnel legally entitled to work during the strike were sufficient to perform any cleaning. He also argued that the necessity for cleaning at Mohawk could be reduced or eliminated by the closure of certain services or areas such as the pub, the cafeterias, the childcare centres and the tennis club. In any event, the union took the position that Mohawk employees could perform the work, citing Modern Building Cleaning Inc. (not yet reported, Board File 4471-93-U, October 7, 1994) [now reported at [1994] OLRB Rep. Oct. 1390], so that specified replacement workers were unnecessary.

46. In response, Marriott was of the view that it had no control over whether Mohawk continued to operate during a strike or closed down any areas. Among other things, counsel also argued that the Board could not look beyond the relationship between Marriott and its employees in assessing whether specified replacement workers were necessary to prevent danger to life, health and safety, and thus the availability of Mohawk employees was irrelevant. On its own, Marriott asserted that it did not have sufficient managerial personnel to perform what it considered to be the minimum amount of cleaning necessary. Mohawk in turn indicated that its intention was to continue to operate during any strike, and that it supported Marriott's request for specified replacement workers.

47. The Board made these observations about similar arguments in Labatt's, supra:

48. 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.

49. 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.

50. 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.

51. 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.

52. 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".

53. 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.

54. Marriott did not cite any danger to life, health or safety to its own employees or to itself in this application. Rather, it relied upon hazards affecting a third party, that is, its customer,

Mohawk and Mohawk's staff, students and faculty. There is nothing in the language of section 73.2(3) which suggests that an applicant cannot rely on danger to a third party in this manner. Indeed, the references to serious environmental damage and danger to life, health and safety have a public interest flavour which implies otherwise. On the other hand, where an applicant seeks to rely on danger to a third party, in considering whether such workers are necessary the Board may look to the ability of that third party to ameliorate or absorb those hazards and the resources available to it in this regard. We would also add that we have some difficulty with the proposition that specified replacement workers are required for the ultimate purpose of continuing a service or operation during a strike which is clearly not necessary to prevent a danger to life, health or safety such as a pub or a tennis club, to use the more obvious examples.

15. In the case before us, however, we were not required to decide these issues because we concluded that even if Mohawk continued to operate at full capacity, Marriott had sufficient managerial personnel to perform the cleaning necessary to prevent danger to life, health or safety within the meaning of section 73.2(3). Our conclusion in this regard was based on a number of factors. Firstly, we accepted Marriott's figures for the minimum number of employee hours necessary to clean the childcare centres and the kitchen areas as they were not disputed by OPSEU. We also assumed, without finding, that it was necessary to keep all eighty washrooms open and that the washrooms must be cleaned once a day, as asserted by Marriott. As a result of our assumptions in this regard, it was not necessary to embark on the exercise of attempting to assess the usage rate and patterns of students, staff and faculty, nor to determine the minimum number of washrooms required for them. In addition, we concluded on the evidence that the time it took to clean a washroom on average was between that set out in Marriott's evidence and that testified to by OPSEU witnesses. We also took into account the fact that some of the washrooms would require more time to clean than the usual nightly cleaning, since they were only being serviced once a day.

16. Secondly, we assumed, again without finding, that it was necessary to collect the garbage at least once a day at both campuses. We concluded on the evidence that more frequent garbage collection was not required, as the consequences were related to aesthetic concerns rather than health and safety problems. In considering the number of employee hours necessary to perform this work, we relied on the evidence with respect to Benjamin Escandor's duties, but increased that time to include the areas such as the student centre and the Wentworth campus which he does not service. We also took into account the fact that if garbage collection was performed only once a day, there would be considerably more garbage to collect, and that this function would be more time-consuming than where there were supplementary garbage runs as well.

17. Thirdly, we were prepared to assume without finding that it was necessary to provide emergency services with respect to broken glass, spills, unplugging clogged toilets, and so forth. However, we concluded that it was not necessary to provide what the parties described as "policing" with respect to cleaning or supplying washrooms more than once a day or other more cosmetic cleaning. In evaluating how many employee hours were necessary for the provision of emergency services, we relied upon a combination of the evidence of Ms. Schaap and Ms. Wilson in regard to the nature and frequency of events requiring such services.

18. Fourthly, Marriott's acknowledgement that cleaning services were not necessary within the meaning of section 73.2(3) between 7:00 a.m. Friday and 11:00 p.m. Sunday of each week played a role in our decision.

19. With these factors in mind, our review of the parties' evidence and submissions indicated that even if Mohawk operated to full capacity, the cleaning which we either concluded or

were prepared to assume in Marriott's favour was required by section 73.2(3) could be accomplished by approximately 214 employee hours per week.

20. Marriott asserted that it employed three managerial personnel who could perform bargaining unit work in accordance with the replacement worker provisions of the Labour Relations Act, and this was not disputed by OPSEU. In addition, the parties agreed as a fact that there was a fourth managerial employee who could not perform any work at the Fennell and Wentworth campuses due to an undisputed disability. As a result, OPSEU agreed to allow Marriott to substitute a person who could fully perform the bargaining unit work for this fourth individual. We therefore found that there were four managerial employees available to Marriott to perform bargaining unit work. Consequently, if each of these employees worked 53.5 hours per week during the anticipated strike, the cleaning described above could be provided.

21. Assuming that this schedule would represent an increase in the usual work time of these employees, we note the Board's observations in Labatt's, supra, that 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". Of course, this does not mean that managerial employees are required to work an unlimited number of hours before the Board will find specified replacement workers necessary under section 73.2(3). In this case, however, it is not apparent that working 53.5 hours per week would be so exhausting as to in itself create a situation which would fall within the parameters of section 73.2(3). We therefore concluded that additional assistance in the form of specified replacement workers was not necessary within the meaning of that provision.

22. One final caveat; we have used a rough calculation of employee hours to come to our conclusion in this case because that approach was appropriate on the evidence and submissions before us. This does not necessarily mean that such an approach will always be applicable.

23. This application is dismissed.

DECISION OF BOARD MEMBER S. C. LAING; November 29, 1994

1. The decision in this case is premised solely on an analysis of the work to be performed, and the resources available to Marriott to complete that work should a strike of its employees occur.

2. It is not necessary, in this case, for the Board to determine in what, if any, circumstances it may examine the ability of a third party to bear the responsibility of preventing dangers to life, health or safety, in place of affording the struck employer strike replacement workers.

3. Nor it is necessary to decide whether the nature of the service or operation (i.e. pub or tennis club) is relevant when assessing the need for strike replacement workers.

4. Accordingly, comments from the Board relative to those issues are properly left for another day, when they are central to its conclusions.