Ontario Public Service Employees Union v. Modern Building Cleaning Inc., 1994 CanLII 9998

[1994] OLRB REP. OCTOBER 1390

4471-93-U Ontario Public Service Employees Union, Applicant v. Modern Building Cleaning Inc., Centennial Centre of Science and Technology (the "Ontario Science Centre") and the individuals listed at Schedule "A", Responding Parties

BEFORE: Robert Herman, Vice-Chair, and Board Members F. B. Reaume and K. Davies.

APPEARANCES: Craig Flood, Ted Loughead and Maurice Anderson for the applicant; James G. Knight, John McMaster and Oliver Zeidler for Modern Building Cleaning Inc.; C. G. Riggs, Deborah Powell, Peter Birnbaum, Janet Geisberger and John O'Reilly for Centennial Centre of Science and Technology.

DECISION OF THE BOARD; October 7, 1994

1. The name of the responding party is hereby amended to read: "Centennial Centre of Science and Technology". This responding party is commonly referred to as the Ontario Science Centre, and we will refer to it by this name.

Background

2. This is an application filed under section 91 of the Labour Relations Act by OPSEU, alleging that Modern Building Cleaning Inc. ("Modern") and the Ontario Science Centre, have breached sections 73, 73.1, and 91(7) of the Act. At the request of the applicant, it was scheduled on an expedited basis.

3. On the first day of hearing, the responding parties made preliminary objections, asserting that the application ought to be dismissed as it was untimely, or as failing to disclose a prima facie, or arguable, case. The Board reserved its decision, and issued a short written decision the following day. We now provide our reasons for that decision.

4. The events in question relate to a lawful strike by the employees of Modern who work at the Ontario Science Centre. In response to that strike, both Modern and the Ontario Science Centre engaged in certain actions alleged here by OPSEU to constitute breaches of the Act.

5. OPSEU represents all employees of Modern who are engaged in cleaning services at the Ontario Science Centre, save and except managerial exceptions and office, clerical and sales staff.

6. The facts as follow were those pleaded by the union in support of its application.

7. On March 2, 1994, the union staff representative wrote to Modern advising that the bargaining unit would be commencing a strike as of March 10, 1994. On the same date, the union wrote to the Ontario Science Centre, advising it that the Ontario Science Centre staff could not legally perform any of the work performed by bargaining unit members during the upcoming strike.

8. On March 3, 1994, the applicant filed an application with this Board (not the instant application) alleging a breach by Modern of section 73.2(12) of the Act. The parties settled that dispute in a Memorandum of Settlement dated March 8, 1994. One of the terms of that settlement was an agreement that the employer, Modern, could utilize the services of up to three on-site managerial persons, but only those persons, to perform bargaining unit work at the Ontario Science Centre in respect of which the strike was shortly to take place.

9. As scheduled, the strike commenced on March 10, 1994. Also on that date, a meeting of management staff of the Ontario Science Centre was held. The agenda of that meeting dealt with how the Ontario Science Centre ought to respond to the strike. All those attending were advised to commence picking up the garbage, which fask was bargaining unit work. After that meeting, the managerial staff of the Ontario Science Centre did in fact begin picking up papers, pop cans and other garbage around the facility, a practice without precedent.

10. On March 28, 1994, the instant application was filed, alleging the facts as recited above, and asserting that both Modern and the Ontario Science Centre had breached the Act through the actions of the staff of the Ontario Science Centre.

11. On March 30, 1994, OPSEU filed further particulars, amending its application as follows:

12. On March 26, 1994, Mr. Dan Somera, ("Somera Sr.") an on site managerial employee of Modern Building Cleaning Inc. ("Modern") was at the Ontario Science Centre with his son, Joseph Somera, ("Somera Jr.") a part-time cleaner and member of the bargaining unit of the Applicant which is on legal strike. Somera Jr. was performing bargaining unit work, namely, picking up and taking out garbage on March 26, 1994. Somera Jr. has performed bargaining unit work from and after March 10, 1994 on various occasions, during the midnight shift. (see Schedule "C", Tab 12).

13. As indicated in paragraph 13 above, a previous Application pursuant to s. 73.2(12) of the Act was filed on March 3,1994 [OLRB File No. 4137-93-MI and was resolved pursuant to a Memorandum of Settlement dated March 8, 1994. That Memorandum of Settlement provided at paragraph 2 thereof:

"the Applicant agrees, without prejudice, that the responding party may request any and all of the following on site managerial persons, and those persons only, to perform bargaining unit work at the Ontario Science Centre in respect of which the strike or lock out is taking place, in the event that strike or lock out does take place:

(a) Joe De Melo

(b) Luis Travera

(c) Dan Somera"

Somera Sr. has violated the terms of that Memorandum of Settlement by having his son perform bargaining unit work at the Ontario Science Centre. Somera Jr.'s actions constitute a violation of that Memorandum of Settlement, which is deemed to be a violation of the Act, as well as a violation of Section 73.1 of the Act. (See Schedule "C", Tab 13).

21. From and after March 10, 1994 the first day of the strike, Modern has introduced and utilized the following industrial machinery to perform work of the bargaining unit:

(i) Starr Hydrodyne 33

• washes and scrubs floors in one motion

• cleans a 4-foot swath in one pass

(ii) Hako Minutemann

• vacuums carpets

• vacuums a 3.5 foot swath in one pass

(iii) Tennant Trend

• sweeps and vacuums floors at the same time

Each machine does the equivalent of the work of two persons in the bargaining unit and are therefore prohibited by the provisions of s. 73.1 of the Act.

12. In the same letter, the applicant indicated that it was alleging breaches of sections 73, 73.1 and 91(7) of the Act with respect to the allegations set out in these additional particulars.

13. Modern and the Ontario Science Centre filed responses, and raised several preliminary objections. First, they alleged that the application was untimely. The applicant sought an expedited hearing relying on urgency, but the application had not been filed until approximately two weeks after the events complained of had occurred. The Board ought not to allow the union to utilize the expedited proceedings in such circumstances. Second, the attempt by the applicant to file further particulars on March 30, 1994 was untimely, and ought not to be allowed. In a proceeding as expedited as a "no replacement worker" application, responding parties have only an extremely short time period in which to respond. It is unfair, they assert, to let an applicant add new particulars after the application has been filed, when as here, the events added arose before the original application was filed.

14. Third, the responding parties asserted that the application as filed (including the further particulars) failed to disclose a prima facie or arguable case for a breach of the Act, or for the remedial relief sought. The application ought therefore to be dismissed without a hearing.

15. The Board heard the submissions of the parties with respect to these preliminary matters. Because of the nature of the objections, the Board accepted as true and provable the facts as pleaded by OPSEU and as set out above, but only for purposes of dealing with the preliminary issues. Many of the facts as pleaded by OPSEU were not in fact agreed to by Modern and the Ontario Science Centre.

Timeliness

16. We turn first to the timeliness objections, that the entire application ought to be dismissed as being filed too late, or alternatively, that the new particulars, filed two days after the application was filed, ought not to be accepted by the Board.

17. The responding parties noted the requirements of the Board's Rules, particularly Rules

16 and 17, and the request of the union that this application be heard in an expedited fashion. Pursuant to the Rules, the responding parties had only two days from the time at which the request for expedition was delivered to them to file their responses. The responding parties note that their responses must be comprehensive, containing statements of all material facts upon which the responding parties intend to rely in the proceeding.

18. Given the ability of the applicant to dictate the timing of the application, and the onerous response requirements, the responding parties argued that a delay of approximately two weeks between the events complained of and the filing of the application ought to lead the Board to decline to consider the merits, at least on an expedited basis. They submitted that no good reason had been provided for the two week delay.

19. Alternatively, the responding parties argued that the further particulars filed on March

30, 1994, ought not to be allowed by the Board. A number of the matters complained of in those particulars arose prior to the filing of the initial application, and the applicant had provided no reason for its delay in filing these further particulars. To allow the application to be so expanded would unfairly prejudice the ability of the responding parties to prepare and participate in the proceeding.

20. The Rules dealing with pleadings are designed to ensure that parties provide sufficient information in advance of the hearing, in a timely and sufficiently comprehensive way, so that the parties and the Board are made reasonably aware of the issues and material facts before the hearing begins. Parties can then come to the hearing equipped with a reasonable understanding of the matters in agreement, those in dispute, and those that need resolution by Board intervention. There is little to commend "trial by ambush", nor is there any place for parties who seek to delay the expeditious resolution of the labour relations dispute before the Board. The practical realities are such that responding parties may often wish to delay a Board proceeding. Delay itself can be a strategic tool utilized by a party to increase its leverage. The Rules can and do seek to minimize the degree to which such delay in Board proceedings will itself become a factor in the labour relations dispute.

21. To enhance the expeditious resolution of the dispute, the Rules do require significant efforts of all parties, but particularly of responding parties and their counsel. The Board does expect compliance with its Rules, and parties who fail to do so bear the risks of such failure. At the same time, there will be circumstances in which with reasonable excuse, parties have been unable to comply with the pleading requirements in the Rules. The nature of the proceeding, the complexity of the issues, the number of witnesses, the unavailability of particular individuals, the continuing development of the issues, the occurrence of new facts; these factors and others can mean that parties, applicants or responding parties, have been unable to fully plead all material facts as required by the Rules.

22. The Rules themselves provide for this possibility (e.g. Rules 22 and 27), that circumstances may lead the Board to relieve a party from the requirements in the Rules. Our paramount concern is to ensure that Board proceedings move expeditiously and efficiently and that all parties have a fair and reasonable opportunity to participate in the proceedings. The Rules are a means to this end, not a goal.

23. The Board deals with labour relations disputes that arise in the Province, and tries to do so in a manner that attempts, as best we can, to promote sound labour relations. The parties who appear before us usually have, or may be about to begin, an ongoing relationship, one characterized by continuing and regular interaction, and often by a large number of potential points of friction. A Board process perceived to be unfair will not likely promote a harmonious relationship. It is important that parties feel they have had a reasonable opportunity to "make their case". Otherwise, our decisions are merely imposed, and do not contain the instructive content that neutral and expert third party intervention can provide.

24. Here, the responding parties object because the applicant waited approximately two weeks after the events to file the complaint, and it then asked that it be expedited, with the consequential demands upon the responding parties to file their materials within two days. This is unfair, they assert.

25. There are many reasons during the early stages of a strike why parties may delay in filing complaints before the Board. During this time, parties will be assessing their relative positions, and in many cases, continuing to negotiate. The approach taken by the Board, in deciding whether to schedule and hear a subsequent complaint on an expedited basis, should take account of this reality. The message would be clear if we were to dismiss the instant application on the basis of timeliness: parties who seek to resolve matters themselves, without Board intervention, may later be penalized when they seek to file complaints with this Board.

26. This is not a desirable message. There will no doubt be cases where the length of the delay is such that the Board will not treat the application in an expedited manner. And there will be cases where the delay has caused prejudice to the responding parties. But neither is true here. A delay of two weeks does not begin to approach the point at which we would conclude that it was inappropriate to allow an application complaining about replacement workers to proceed on an expedited basis. Accordingly, we decline to dismiss the application because OPSEU waited two weeks from the events complained of in order to file the instant complaint.

27. We reach a similar conclusion with respect to the further particulars filed two days after the application was filed. The additional particulars relate directly to the thrust of the complaint, and are alleged to be breaches of various sections of the Labour Relations Act. There is no apparent (or asserted) prejudice to the responding parties, as the hearing took place approximately one week after receipt of the additional particulars. Even if there had been some prejudice, it could have been cured by a short adjournment. The fact that this is an expedited proceeding is not itself sufficient reason to preclude an applicant from filing additional material.

Whether a Prima Facie Case Exists

28. We turn now to consider the objection that the complaint as filed, including the additional particulars, fails to disclose a prima facie or arguable case with respect to the allegations that Modern Building Cleaning and the Ontario Science Centre breached section 73, 73.1, and 91(7) of the Act.

29. Those sections read 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; ("briseur de greve professionnel")

"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. ("inconduite liée a une grève")

(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; ("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 à l'égard duquel Ia grave ou le lock-out a lieu")

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

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,

(a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

(5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:

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.

91.- (7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

30. Different breaches are alleged against the responding parties. We first consider whether there is a prima facie, or arguable, case pleaded with respect to the alleged breach by the Ontario Science Centre. After hearing the submissions of the applicant, it became apparent that the only section alleged to have been breached by the Ontario Science Centre was section 73.1 of the Act. The applicant acknowledged that the Board would have to conclude that the Ontario Science Centre was acting "on behalf of' Modern in order to find that the Ontario Science Centre had breached section 73.1. We turn to this issue.

31. Section 73.1 describes a complicated code of permissible and impermissible behaviour for employers and employees during strikes or lockouts. Replacement workers are proscribed in certain circumstances and allowed in others. The general approach taken by section 73.1 is to prohibit the "employer" from utilizing certain classes of persons to perform certain work during a strike or lockout. The prohibitions restrict the actions of "employers". "Employer" however, is defined in section 73.1(1) to include a "person acting on behalf of' the employer. It is common ground that Modern is the employer here. The issue is whether the Ontario Science Centre was "acting on behalf of' Modern Building Cleaning.

32. Pursuant to a commercial arrangement, the Ontario Science Centre hired Modern Building Cleaning to provide specified cleaning services for its facility. The employees of Modern at the Ontario Science Centre performed a variety of cleaning duties, including the cleaning and waxing of floors, the picking up and taking out of garbage, the cleaning of washrooms and cafeteria, and the general cleaning of all areas at the Ontario Science Centre.

33. When Modern Building Cleaning was prohibited by the Labour Relations Act from having its striking employees (amongst others) perform these services, the Ontario Science Centre held a meeting of its management personnel on March 10, 1994, and arranged for them to pick up garbage around the site. There is no allegation that the Ontario Science Centre advised Modern of this meeting, that Modern was in any way involved in this decision by the Ontario Science Centre, nor that Modern was even aware of this meeting or its result. There is no allegation of any communication or contact after this meeting between Modern and the Ontario Science Centre over the issue of the Science Centre using its own management personnel to pick up garbage. Thus, the applicant does not suggest that there was any interaction between Modern and the Ontario Science Centre over the issue of who would pick up garbage, or perform any of the struck work, nor does it suggest that Modern was in any way involved directly or indirectly in such a decision.

34. In these circumstances, we conclude that the Ontario Science Centre was not "acting on behalf of' Modern when its managerial personnel picked up garbage around the Centre. As owner of the facility, the Ontario Science Centre was concerned for its cleanliness and appearance. When the company hired to perform cleaning services was unable to do so, the Ontario Science Centre performed some of these services itself, with its own personnel. This fact alone, and that is all there is here, does not arguably establish that the Ontario Science Centre was acting on behalf of the company it had hired to clean the facilities.

35. There may be circumstances in which the Board might logically infer that a company or entity was acting on behalf of the actual employer. A lack of any allegation of communication, contact or interaction between the two companies would not then be fatal. Here, however, the logical inference is that the Ontario Science Centre personnel were picking up garbage for the benefit of, or on behalf of, the Centre itself, and not to assist Modern in any way.

36. The union argued that the commercial contract between the Ontario Science Centre and Modern could be terminated by the Ontario Science Centre if the Centre was not cleaned properly. Thus, submitted the union, the work being done by the Ontario Science Centre personnel was clearly to the benefit of Modern, because it had the effect of reducing the likelihood of termination of the contract. The union also relied upon the provisions of section 73.1(9), which place upon the employer the burden of proof of establishing that it has not breached section 73.1. The Union submitted that the Board ought to hear the evidence, rather than dismissing at this stage. Given that the onus lay with the Ontario Science Centre to establish why it had acted as it had, submitted the union, the Ontario Science Centre would have to prove it had not been acting on behalf of Modern. In light of the reverse onus, the union asserted that this application ought not to be dismissed as failing to disclose a prima facie case.

37. Subsection 73.1(9) reads as follows:

73.1-(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.

It is unnecessary to decide here whether the reverse burden of proof applies to the issue of whether an entity or individual is an "employer", and it is unnecessary to decide whether a responding party has the onus of proving it is not an "employer" within the meaning of section 73.1. We say this because, regardless of onus, an applicant asserting that an entity is such an "employer" must plead an arguable case for such status. The mere assertion will ordinarily be sufficient, as the typical scenario involves an employer's interactions with its employees. But here the allegation is that the Centre acted "on behalf of' Modern. An applicant must plead material facts sufficient to establish an arguable case in this regard.

38. Again, there will be circumstances which themselves arguably suggest that a particular entity or individual has been acting on behalf of the employer in question. Here, however, such an inference would be counterintuitive, and inconsistent with a realistic and reasonable appraisal of the workplace context, the relationship between the Ontario Science Centre and Modern, and the nature of the work.

39. Both parties referred to and relied upon the recent decision of the Board in The Canadian Red Cross Society, [1994] OLRB Rep. Jan. 34. Although that decision deals in large part with matters not here in issue, it does consider whether particular parties could be said to have been acting "on behalf of' the employer.

40. We agree with the comments of the Board in that case (at paragraph 47 therein) where it concluded that the Board ought to give the word "employer" a meaning most consistent with the purposes of the provisions in question. As the Board there concluded, the question of whether a person (or corporate entity) is "acting on behalf' of an employer is essentially factual in nature, and will depend on the particular circumstances. In paragraph 52 of that decision, the Board indicated that the reasons for an individual or person's activities are relevant, as they must at least in part be to "provide some benefit to another or at the behest of another", in order to fall within the ambit of the definition. We agree with these comments also. The reasons certain actions are taken, which may have the effect of assisting the employer, will be relevant in determining whether such actions can be said to be conduct taken "on behalf of' the employer.

41. Again, no facts are alleged here which could justify such a conclusion, nor do the circumstances support the inference that the Ontario Science Centre was doing this work in order to benefit Modern, or at the request of Modern. For these reasons, the Board concluded that the applicant had failed to demonstrate a prima facie case that the Ontario Science Centre had breached section 73.1 of the Act, and this aspect of the complaint was dismissed.

42. Turning to alleged breaches by Modern, the applicant alleged breaches of sections 73,

73.1 and 91.(7). There is however nothing before the Board, either in the materials filed or submissions at the hearing, which even arguably suggests a breach by Modern of the provisions of section 73 of the Act. That section speaks to strike-related misconduct and the services of "professional strike breakers", as defined therein. Modern had its own bargaining unit personnel perform bargaining unit work during the strike, and the union argues that Modern thereby breached section 73.1. There are no material facts pleaded that would arguably support the proposition that Modern was somehow engaged in "strike related misconduct" within the meaning of section 73. Accordingly, the Board dismissed this aspect of the application.

43. With respect to the assertion that it had breached section 73.1 of the Act, the union based its submissions upon two sets of facts. First, the work done by bargaining unit personnel (as referred to paragraphs 19 and 20 of the particulars as amended, set out in paragraph 10 above) constituted a breach of this section, and secondly, the introduction and utilization of new industrial machinery, after the commencement of the first day of the strike (as set out in paragraph 21 of the amended particulars) also constituted a breach of this section.

44. With respect to the first circumstance, the Board was satisfied, and there was no serious dispute, that the union had pleaded a prima facie case. Nevertheless, Modern argued that the Board ought to decline to entertain this aspect of the complaint on the grounds that it was "de minimis"; that is, the nature of the alleged breach was so trivial that it ought not to have been brought before the Board to begin with, and it would be counterproductive to sound labour relations for the Board to inquire further into the matter.

45. Section 73.1 is among the new provisions of the Act, establishing rights and obligations not before seen in the Labour Relations Act. These rights and obligations arise in a strike or lockout context, an emotionally charged and often highly confrontational context. In these circumstances, absent a demonstration that the issues at hand are solely matters of principle without practical consequence, the Board would not be inclined to refuse to consider a matter because it is alleged to be trivial. If it were truly trivial, it would most likely have been resolved without resort to litigation. And even seemingly trivial issues can have large impact during strikes or lockouts. Accordingly, the Board ruled that the allegations contained in paragraphs 19 and 20 of the amended pleadings would proceed.

46. The second circumstance is the union's assertion that the introduction of new machinery, as alleged in paragraph 21 of its amended particulars (see paragraph 10 above) constituted a breach of section 73.1 of the Act.

47. The union was unable to refer us to any particular subsection or provision in 73.1, or elsewhere in the Act, that supported its allegation that the introduction of this machinery was per se in breach of 73.1. It submitted however, that the Board ought not to dismiss this aspect of the complaint at this preliminary stage, as failing to disclose a prima facie case, but that the merits of this allegation were better addressed at the conclusion of the hearing. The clear intent of the provisions, dealing with replacement workers and the performance of struck work, submitted the union, was to enhance the ability of employees on strike to exert pressure upon the struck employer. For the Board to conclude, particularly on the basis of a preliminary objection, that the introduction of machinery that performs bargaining unit work is not prohibited by the Act would interfere with the right of employees under the Act to strike effectively.

48. Again, we might usefully refer to the comments of the Board in Red Cross:

49. There is no doubt that all of this provides the interpretative context in which we must apply sections 73.1 and 73.2. On the other hand, as eloquent as the unions' arguments were with respect to the purpose of the amendments, legislative intent does not in itself provide freestanding rights, nor does it substitute for specific and substantive provisions. Legislative purpose only becomes meaningful as one part of the exercise of understanding and administering some concrete provision. As a result, we turn to the amendments themselves.

50. 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.

51. 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. The differences between the restrictions under section 73.1(5) at any place of operations operated by the employer, and what is prohibited at the strike location by section 73.1(6) make it necessary for us to first determine whether the work in this case is being performed "at a place of operations in respect of which the strike or lock-out is taking place".

52. The replacement worker provisions represent a new legislative code which sets out various kinds of prohibitions with respect to the performance of work during a strike. The new restrictions do not ban outright the performance of all struck work by any means or any persons, but only in certain delineated circumstances. We see no provision within section 73.1 that suggests, even arguably, that the introduction of machinery is a proscribed method of having bargaining unit work performed during a strike. We do note that there is no assertion that the persons operating the machinery were working unlawfully. We conclude only that the introduction of the machinery to perform bargaining unit work is not itself in breach of section 73.1. Accordingly, this aspect of the complaint was also dismissed.

53. While the allegations contained in paragraph 21 of the amended pleadings do not arguably constitute a breach of section 73.1, it is arguable that they could reflect conduct in breach of the prior Memorandum of Settlement reached between the union and Modern. Accordingly, the Board earlier ruled that the allegations in paragraph 21 of the amended particulars could continue, but only with respect to the assertion that the facts as pleaded constituted a breach of section 91(7) of the Act.

54. For these reasons, the Board issued its prior decision. Shortly thereafter, the parties settled all matters remaining in dispute.