United Steelworkers of America v. Nelson Quarry Company, 1995 CanLII 9991

United Steelworkers of America v. Nelson Quarry Company

File No.: 1902-94-U Date: January 3, 1995 Ontario Labour Relations Board

Between: United Steelworkers of America, Applicant v. Nelson Quarry Company, Responding Party

Before: S. Liang, Vice-Chair.

Appearances: M. Lewis and Emilio Campea for the applicant; Robert Statton and Graeme Goodchild for the responding party.

DECISION OF THE BOARD

1This is an application made pursuant to the provisions of section 91 of the Labour Relations Act, alleging a violation of the provisions of section 73.1 ("the replacement worker provisions").

2This application was filed on August 30, 1994 and between September 6 and October 27, there were twelve days of hearing in which the Board dealt with a number of preliminary matters such as documents production, and heard the evidence and representations of the parties. During the course of the proceedings, the Board made a number of rulings which have been reduced to written decisions dated September 13, 21, 27 and 28.

Introduction

3This employer ("Nelson Quarry") is one of a number of operating companies controlled by Nelson Aggregate Co. Nelson Quarry consists of a limestone quarry located in Burlington and an asphalt manufacturing plant at the same location. The bargaining unit represented by the applicant (also called "the Steelworkers" or "the union" herein) consists of dependent contractors engaged generally in the delivery of crushed stone (also referred to as "aggregate") for Nelson Quarry. As of March, 1994, there were 11 persons in the bargaining unit. Nine of these persons owned and operated a tandem axle vehicle. One person owned a single axle vehicle, and one person a tractor trailer.

4There are essentially three ways in which stone is shipped out of Nelson Quarry. First, the company may engage one of the dependent contractors to deliver stone. Second, the company may engage one of a number of independent trucking brokers to deliver stone. All the independent brokers use tractor trailers for delivery. Third, the purchaser of the stone may pick up its material from the quarry.

5The union and the employer were parties to a collective agreement which expired on or about February 10, 1994. On February 17, the parties received a "no-Board" report from the Minister of Labour. On March 7, the union gave written notice that it would commence a strike on that date. On the same date, the employer informed the union that it had locked out the members of the bargaining unit, also effective March 7.

6The strike/lockout continues to this day. From March 7 to about August 3, the company significantly reduced its operations. Very few trucks entered or left the quarry. On or about July 26, the company filed an application to restrain picketing before the Board. The application was scheduled to be heard on August 2, and as a result of the parties' appearance on that date, the matter was adjourned to August 16. The application was ultimately withdrawn with leave of the Board on August 17.

7Apparently as a result of the events of August 2, the company decided to re-commence its operations on August 3, using the services of independent brokers to deliver its stone. Customers of Nelson Quarry also continue to pick up stone from the quarry.

8The union alleges that the independent brokers hired by Nelson Quarry are performing work which was ordinarily done by the dependent contractors within its bargaining unit. It is the position of the union that the work of the employees in the bargaining unit for the purposes of section 73.1 was the delivery of stone. This work continues to be performed during the strike/lockout, in violation of section 73.1.

9The employer takes the position, among other things, that to the extent that the work of all but one of the persons in the bargaining unit consisted of the delivery of stone by single axle or tandem axle vehicles, it has not made any deliveries since the commencement of the strike/lockout using such vehicles. All of the independent brokers engaged by the company use tractor trailers. Further, the sole member of the bargaining unit who drove a tractor trailer, Wilfred Bester, resigned from his haulage relationship with Nelson Quarry on June 27, 1994. Therefore, as of the time of this application, there was no work in the bargaining unit for the purposes of section 73.1 which consisted of delivery of stone by tractor trailer.

10On the first day of hearing, the employer and the Communications, Energy and Paperworkers Union of Canada, Local Union No. 494 ("the CEP") brought to the Board's attention applications made jointly by them under sections 91 and 11.1 of the Act (Board File Nos. 1960-94-U and 1961-94-M). The employer and the CEP requested that the Board consolidate the hearing of its two applications with the hearing of this matter. This was opposed by the union. After considering the submissions of the parties, I ruled that I would not consolidate Board File Nos. 1960-94-U and 1961-94-M with the present one.

11Section 11.1 of the Act concerns, among other things, the right of access for the purpose of picketing to property which has a "quasi-public" nature. This section also provides the Board with the power to impose restrictions on the exercise of this right to prevent undue disruption to the operations of an applicant. Assuming that section 11.1 applies to the premises of Nelson Quarry, and assuming that the CEP is a party which may bring an application under section 11.1, it was not apparent at all from the materials submitted by the employer and by the CEP that they allege that the picketing activities of the union's members were causing any disruption to their operations. It is also not apparent in what way these parties allege that the union has violated the Act, in the section 91 complaint.

12This assessment of the materials filed was confirmed by the representations of counsel for the company who indicated that the purpose of filing both applications was to ask the Board's directions with respect to the limits of its lawful activities during the strike/lockout. Counsel indicated that the company wished a decision from the Board providing general guidelines on who is lawfully permitted to deliver aggregate during the strike/lockout, beyond the matters specifically set out in the union's application.

13It is not apparent to me that the applications made under 11.1 and 91 of the Act will involve the Board in providing general guidelines as to the limits of section 73.1. I certainly see no necessary link between the facts which would support an application under section 11.1, allegations that the union has violated sections 71, 73, 74 and 76 of the Act, and the current application. Further, it appeared to me that the issue of the application of the replacement worker provisions of the Act to the employer's operations during this strike/lockout is precisely what is before me in the present application. Therefore, my decision on this application will provide the company, to the extent of the scope of this complaint, the guidance it seeks.

14I therefore adjourned Board File Nos. 1960-94-U and 1961-94-M, pending the determination of the current application.

15Upon receiving my ruling declining to consolidate these various matters, the CEP indicated that it was not requesting status to intervene in the application before me.

16The company returned to the theme of "general guidelines" at other stages of this hearing. In its application, the union makes no allegation that customer pick-ups of stone (referred to in the industry as "FOB") violate section 73.1. In counsel for the union's opening statement, it was stated clearly that the shipment of stone by Nelson's customers was not in dispute in this application. Counsel for the union stated for the record that there may be circumstances where customer pick-ups violate section 73.1; however, it was not making such an argument in the present application. During the course of the company's case, counsel for the company sought to file as evidence a large number of documents relating to FOB deliveries. During the course of extended argument as to their relevance, counsel for the company asked the Board to make an interim order that FOB deliveries do not constitute unlawful replacement work.

17I ruled that I did not intend to hear or receive evidence which does not relate to issues forming part of the current application. Further, I did not intend to make rulings on issues which are not part of this application. In the absence of a complaint by the union that the use of FOB deliveries violates the replacement worker provisions, this issue was not before me. To the extent that the union resists the company's attempt to expand the focus of this application, without giving up the possibility that it may complain about these matters at a later date, this is a fact that may be taken into account by the Board in considering any future complaint by the union on these same issues.

18Again, in final argument, counsel for the company requested that I declare that FOB deliveries do not violate the replacement worker provisions of the Act. Again, I indicated that this issue was not before me.

19I make the general observation that the company seems to hold a misconception of the role of the Board in applying the provisions of the Act, and in particular, the provisions of section 73.1. Section 73.1 is, like sections 65 to 71 and 73, complaint-based. That is, it sets out certain prohibitions which may form the subject of an unfair labour practice complaint. The Board's authority to apply and interpret these provisions arises when there is a complaint that these prohibitions have been violated. In the absence of a complaint, the Board does not inquire into facts simply because a party wishes to have the Board's advice about whether or not the Act has been violated.

The Evidence

20The Board heard the evidence of fifteen witnesses during the course of the hearing. It is unnecessary to provide all the details of each witness' evidence. The Board also received a voluminous amount of documentary material from the parties, consisting of invoices, haulage reports and other material. Ultimately, much of the evidence was not in dispute. To the extent that there were conflicts in the evidence, it is unnecessary for the most part for me to resolve them for the purposes of this decision.

21In his final submissions, counsel for the company made extravagant claims regarding the credibility of the union and its witnesses. Counsel submitted, in the case of one witness, for instance, that he and the union had "duped" the Board. Counsel also made claims that the union was acting in bad faith in bringing this application, that it was proffering half-truths to the Board, and other similar accusations. I am satisfied that there is not a shred of evidence to support any of these accusations. There is nothing before me to suggest that the union was acting in anything but good faith in bringing this application, or was deliberately misstating any fact to me. Further, the witnesses testifying on behalf of the union were candid, thoughtful and responsive to the questions asked.

22Much of the evidence focused on three general themes: evidence concerning the way in which customers of Nelson Quarry order stone and how customers' orders relate to the type of truck used in its delivery; evidence comparing the activity of Nelson Quarry before and during the strike/lockout; evidence concerning the work performed by members of the bargaining unit prior to the strike/lockout and the way in which work was assigned. In comparing the activities of Nelson Quarry before and during the strike/lockout, the parties relied on various company documents showing sales and deliveries which enabled a comparison between the two periods of time. As well, there was also evidence regarding specific transactions with specific customers. As outlined in my decision of September 21 in this application, the parties agreed that to the extent that their case is based on the details of specific transactions, they would present the evidence based on a representative group of customers.

23The customers of Nelson include construction contractors, cement plants, and individual homeowners. When a customer contacts Nelson to inquire about a price for its product, the price that Nelson's sales staff normally quotes is a price for delivered product. In other words, it is a global price which includes a component for the shipping costs, and a component for material. The component reflecting shipping costs is fixed by the amount that Nelson pays the brokers (a term which I use to mean both the dependent and independent contractors) for delivery. The sales staff have some flexibility in the materials component. At the time of this transaction, a customer may specifically request pricing for delivery by several different types of vehicles. In other cases, a customer may request a price for delivery by a specific type of vehicle only. In other cases, there may be no discussion about the type of vehicle, because it will be fixed by the amount of material that the customer wishes to order. For example, if a customer wants to buy only 9 tonnes of stone, it will be provided with a price that includes delivery by single axle truck.

24Single axle trucks carry a load of about ten tonnes. Tandem trucks carry a load of about eighteen tonnes, and tractor trailers a load of about thirty-four to thirty-eight tonnes. The maximum load that any specific vehicle can carry is fixed for that vehicle and may vary a few tonnes from another like vehicle.

25The amount which Nelson pays to truckers for delivery is expressed as an amount per tonne of material. The amount varies by the geographical zone to which the delivery is made. The amount paid for delivery also varies according to the type of vehicle used. It is highest per tonne for deliveries by single axle trucks, and lowest for delivery by tractor trailer. Deliveries by tandem axle trucks fall in the middle.

26The most recent collective agreement between the union and the employer has schedules of rates for delivery by single axle, tandem axle and tractor trailers, per tonne of material. The dependent contractors covered by this agreement own and drive their own trucks, and are responsible for insurance and licensing fees. As indicated above, as of March, 1994, one person in the bargaining unit owned and drove a single axle truck, nine persons owned and drove tandem trucks, and one person owned and operated a tractor trailer. Some members of the bargaining unit have been delivering stone for Nelson Quarry and its predecessor companies as long as twenty to thirty years. It was revealed in the evidence that the sole person in the bargaining unit driving a tractor trailer, Wilfred Bester, has not been paid for his deliveries at the collective agreement rate for some number of years. Instead, he has been paid by the company the same rates that it pays its independent brokers. It is unnecessary to determine (it is disputed), whether this arrangement was entered into with the agreement or knowledge of the union.

27As a matter of simple arithmetic, it is clear that it is more expensive to ship an equivalent amount of stone by single axle or tandem axle trucks, than by tractor trailers. Further, it would take a single axle or tandem axle truck two or three times the number of trips to carry the same amount of stone that can be carried in one tractor trailer delivery. Single axle trucks and tandem axle trucks have certain advantages over tractor trailers, however. They are more manoeuvrable, less bulky, and can drop their deliveries if needed in a number of shallow piles instead of one large pile.

28It is fair to conclude from the evidence that if a customer requires a sufficient quantity of stone and wishes it delivered to a site where accessibility is not a problem, it generally chooses to have the delivery made by tractor trailer, which is the cheapest method. It is also fair to conclude that customers would be generally indifferent if Nelson decided to make a given delivery using tandem trucks instead of tractor trailers, so long as the agreed price for delivered material was maintained. This, however, is unlikely to occur, for the simple reason that it would be uneconomic for Nelson to use a method of delivery which requires it to pay shipping costs higher than those it can recover from its customer.

29There are also times when despite the higher shipping costs, a customer prefers to have material delivered by tandem trucks instead of trailers. Reasons for this include limitations on site accessibility by tractor trailer, the need to use a vehicle that can make a number of small drops, and the amount of material needed.

30The evidence is that even before the beginning of the strike/lockout, the company had ceased to accept orders for or offer deliveries of material to its customers by either single axle trucks or tandem trucks. This decision was made in December of 1993 and became effective as of January, 1994. This resulted in grievances by the union, which were referred to arbitration. On June 27, 1994, the arbitrator found on the basis of undisputed facts and the evidence called by the union (the employer called no evidence) that:

16. Those facts support a rebuttable inference that the employer withheld from the single axle and tandem truck drivers aggregate loads which they would have made in the ordinary course of the employer's business and that those loads were made by trucks not driven and owned by the bargaining unit drivers, while bargaining unit drivers were either present at the quarry with their vehicles or would have been available to perform the deliveries within the time limits of clause 12.02. Absent evidence to the contrary, I so find. In the result, on and after December 27, 1993 to and including February 10, 1994, the employer has denied the single axle and tandem truck drivers the opportunity to earn the haulage rates set out in the collective agreement and, in so doing, has violated the agreement, including in particular clause 12.02.

31It is useful to set out some of the provisions of the collective agreement, including the provision found to have been violated by the company:

ARTICLE 11 - SCOPE

2.01 This Agreement shall apply to all dependent contractors working at or out of Nelson Quarry Company's quarry at Burlington, Ontario, save and except foremen and persons above the rank of foreman, dispatcher, office and sales staff, security guards and watchmen and persons covered by the certification in Board File No. 2273-83-R

ARTICLE 111 - RECOGNITION

3.01 The Company recognizes the Union as the sole and exclusive bargaining agent for all dependent contractors of the Company in the bargaining unit above defined.

ARTICLE IV – MANAGEMENT RIGHTS

4.01 The Union agrees that it is the exclusive function of the Company:

(a) to conduct its business in all respects in accordance with its commitments and responsibilities, including the right to manage the jobs, relocate, extend, curtail or cease operations, to use brokers, to determine the number of men and vehicles required at any or all operations, to determine the equipment to be used and the schedules of shipment and productions, to judge the qualifications of the dependent contractors, and to maintain order, discipline and efficiency.

12.02 The Company shall not contract out to brokers any single axle or tandem deliveries to its customers if such deliveries can be performed by members of the bargaining unit within two (2) hours of the Company's request.

32Despite the arbitration decision of June 27, the onset of the strike/lockout effectively meant that the bargaining unit members have never resumed doing deliveries for Nelson. As outlined above, all of the company's operations had in any event been significantly reduced as of March 7. However, on August 3, the company decided to resume its operations. On August 4, Graeme Goodchild, the Operations Manager for Nelson Aggregate Co., including Nelson Quarry, sent the following memorandum to the company's sales and dispatch staff:

We have a Legal Strike by Tandem and Single Axle Owner Operators.

Bill 40 restricts us from doing any Tandem or Single Axle Work or from doing their work with any other trucks.

Bill 40 concerns Replacement Workers.

NOTE:

DO NOT offer Trailers instead of Tandems or Single Axles

This could be deemed as Replacing Workers.

33The company's sales staff who testified stated that since August 4, they have been complying with the instructions in the memorandum. Where a customer contacts Nelson Quarry and requests delivery of material by tandem truck or single axle truck, in their evidence, the customer is told that the company cannot supply such material.

34As indicated above, one member of the bargaining unit, Mr. Bester drives a tractor trailer and not a tandem or single axle vehicle. There is no evidence that the company has instructed its staff to turn down any orders for material to be delivered by tractor trailer, and no evidence that this has ever been done since the beginning of the strike/lockout. In other words, there is no evidence of what, if anything, Nelson Quarry has done to avoid using prohibited replacement workers from performing work formerly performed by Wilfred Bester. No doubt, this is linked to the company's position in response to this application that as of June 27, 1994, upon Mr. Bester severing his haulage relationship with the company, the work of bargaining unit members for the purposes of section 73.1 no longer included delivery of material by tractor trailers.

35I now turn to a general overview of the company's activities before and during the strike/lockout. Documents were introduced as exhibits which permit a comparison of the company's activities during the summer of 1993, and the summer of 1994. Since many of the company's customers are in the construction business, the middle months of the year are its busiest. The summaries which were compiled by the parties based on the information in these documents focused largely on August 1993 and August 1994. In August of 1993, the company sold a total of 50,729.24 tonnes of material which was picked up FOB. In the same month, it sold 29,655.62 tonnes of material for which it arranged delivery. In August of 1994, the company sold 29,689.10 tonnes of material which was picked up FOB, and in the same month, sold 17,438.09 tonnes of material for which it arranged delivery. In August of 1994, the company also shipped 10,142.00 tonnes of material to the Milliken Depot and Pinecrest Depot, both of which are operations of Nelson Aggregate Co. Therefore, in August of 1994, the company actually arranged for the delivery out of Nelson Quarry of about 27,580.09 tonnes of material. When the inter-company transfers of material to the Milliken and Pinecrest Depots are taken into account, the total amount delivered by Nelson in August of 1994 was about 93% of that delivered in August of 1993.

36Comparing the activities of the independent brokers with the dependent brokers based on tonnes delivered, independent brokers delivered about 45 percent of the total tonnes delivered in May to August of 1993, and dependent brokers, about 55 percent. In the same period in 1994, of course, independent brokers accounted for 100 per cent of the tonnes delivered.

37Another indicator of the activity of the company is the number of loads which leave the quarry. Between May 1, 1993 and August 31, 1993, independent brokers made about 32% (1924) of all deliveries and dependent brokers, about 68% (4109). In August of 1993, the company used nine different independent brokers to make 444 deliveries. In August of 1994, the company used eleven independent brokers to make a total of 732 deliveries.

38It is evident from the above that the use by Nelson of independent brokers to deliver aggregate has increased markedly in 1994. Yet the amount of material delivered by Nelson remains almost the same during the strike/lockout as before the strike/lockout.

39Turning to customer activity, consistent with the decision made by Nelson Quarry in December 1993, no deliveries have been made to customers by single axle and tandem truck since December 27. All of the customers on which I received evidence have received tractor trailer deliveries of material from Nelson in August of 1994. Many of these are past customers of Nelson. For some customers which have done business with Nelson in the past, the receipt of tractor trailers deliveries in August of 1994 is consistent with how these customers have had material delivered in 1993 (for instance, Eastdale Contracting Limited, B. D. International Interlock and Elmford Construction Co. Limited). However, there were also customers who consistently bought tandem loads of material in 1993, but in August of 1994 had material delivered by tractor trailer (for instance, Maiella Contracting Sewers & Watermain Ltd., Mueller Construction Co. Ltd. and Ministry of Natural Resources, Bronte Creek Provincial Park).

40Some customers which have received deliveries of material by tandem trucks from Nelson in the past testified that they continue to require some aggregate to be delivered by tandem trucks for the purposes of their construction activities, and have gone to competitors of Nelson Quarry for such needs. One of these customers is Maiella. In May to August of 1993, Maiella received approximately 70 loads of aggregate delivered by tandem truck from Nelson Quarry. In the same period, there was only one delivery of material from Nelson Quarry by tractor trailer. In August of 1994 alone, there were thirty-two loads of material delivered to Maiella by tractor trailer from Nelson Quarry. The evidence of Gino Masciantonio, the president of Maiella, was that whereas he only used Nelson to supply some of its tractor trailer loads in 1993, in 1994, he decided to have Nelson supply all its tractor trailer deliveries. He also stated that, where possible, he prefers to have material delivered by tractor trailers, because of the cost. Most of the material which Maiella received from Nelson Quarry in August of 1994 by tractor trailer was delivered to a job site at the Ford Plant. Mr. Masciantonio testified that where trailers had access on this site, he purchased material from Nelson Quarry. Where, for the same construction project, he required deliveries to be made by tandem vehicles, he ordered the stone from Milton Limestone.

41A certain portion of the deliveries being made by Nelson Quarry during the strike/lockout consists of what the company describes as new accounts. For instance, one customer, Canada Building Materials ("CBM"), purchased material in the past from the Uhtoff Quarry, a Nelson Aggregate company, which was shipped by rail from Orillia. In 1993, CBM made the decision that the stone from that quarry did not meet its needs, and decided to obtain stone from Nelson Quarry instead. The contract for delivery of the material was negotiated some time in 1993, based on delivery by tractor trailer and the first deliveries were made in either July or November of that year.

42As well, Nelson Quarry is now shipping significant quantities of stone to the Milliken and Pinecrest Depots owned by Nelson Aggregate Co. This resulted from a decision by Nelson Aggregate made in the fall of 1993 to cease using rail to ship stone. This meant that stone which was formerly shipped from Nelson Aggregate's Uhtoff Quarry by rail to these depots, is now supplied by Nelson Quarry. The evidence is unclear as to exactly when this change was implemented, though it appears that tractor trailer deliveries did not start until 1994. Prior to this, Nelson Quarry had not supplied stone in any significant amount to these depots.

43I turn now to the evidence concerning the activities of the bargaining unit members and the independent brokers in 1993 and 1994, in addition to the general picture above. The evidence was that members of the bargaining unit generally arrive at Nelson Quarry from 5:15 to 6 a.m. each day. There is a building in which the truck drivers congregate, until they are called by the dispatch office through a speaker to be loaded for a delivery. The members of the bargaining unit may be called upon to deliver 5 to 10 loads per day. They work five days a week, from approximately 6 a.m. to 6 p.m. When a truck driver is requested to make a delivery, he is told what kind of material is to be loaded. The truck is driven to the yard where material is piled and sorted, and is loaded. Each truck is then weighed at the scale house. On the way out, the truck drivers stop at the dispatch office to pick up a delivery ticket indicating the name of the customer and place for delivery.

44In addition to the members of the bargaining unit, independent brokers also arrive at Nelson Quarry early in the morning. The evidence of the union was that the drivers in the bargaining unit are the first to be loaded each day. This was disputed by the company, whose evidence was to the effect that no distinction was made as to whether the dependent contractors or the independent contractors were loaded first. It is unnecessary for me to resolve this conflict, for I am satisfied on both the oral and documentary evidence that before Nelson Quarry made its decision to cease using the tandem and single axle truck drivers to make deliveries, there was regular and steady work for the members of the bargaining unit. The evidence also shows that Wilfred Bester had steady work making deliveries with his tractor trailer, and that when the company needed a tractor trailer to make a delivery, it was first offered to Mr. Bester before the independent contractors.

45The evidence of the bargaining unit members was that they delivered material for Nelson Quarry to a broad range of sites, including construction sites, customer yards, parking lots, and roadways. Geographically, they were called upon to deliver anywhere from London to Scarborough.

46Bargaining unit members testified that no customer of Nelson Quarry with whom they came into contact on a delivery has ever discussed a difference between the different types of vehicles available to make deliveries. Emilio Campea, a member of the bargaining unit and president of the local union, testified for instance that he has regularly delivered material to sites where tractor trailers are also being used to deliver material. He stated that he often sees Mr. Bester delivering material for Nelson to the same site as he does, on the same day. Although he understands that there are occasions when a tractor trailer is too bulky for a delivery site, he believes this is a rare occurrence.

47It is the understanding of Mr. Campea that independent brokers are called upon to make deliveries when the dependent contractors are too busy. Independent brokers are engaged during the spring to fall months, but are rare in the winter months. In reviewing some of the deliveries which he made during 1993, he did not see any reason why a tractor trailer could not have had access to many of these sites.

48My review of the documents shows that, at least with respect to August of 1993, it was very uncommon for Nelson to send both tractor trailers and tandem trucks to make deliveries to the same location. In some of the few instances where it did occur, the same material was delivered by both tractor trailers and tandem trucks within the month. In other instances, different material was delivered by different types of vehicles.

49The documents indicate that the independent brokers which have been used by the company since it resumed shipping in August of 1994 have all been used, to a greater or lesser extent, by Nelson to make deliveries prior to 1994. One broker, Muscello Transport Ltd., is responsible for about half the material delivered out of Nelson Quarry in August of 1994. Muscello did not make any deliveries for Nelson Quarry in May to August of 1993. Most of the deliveries in August of 1994 were to the Milliken and Pinecrest Depots.

50Before I leave the evidence, I note that during the course of the hearing, the company tried to introduce evidence concerning the conduct of the union's strike vote. I ruled that this evidence was not relevant. Since it is not disputed that the company has locked out the members of this bargaining unit, the requirements of section 73.1(2)1, 2 and 3 do not apply.

Argument

51Counsel for the company states that the union has failed to establish, with respect to any of the representative companies, that the independent brokers were doing the work of the bargaining unit during the strike/lockout. A large portion, almost a third, of the material delivered in August of 1994, for example, consisted of "new" work (such as the Milliken and Pinecrest Depot deliveries, and the Canada Building Materials deliveries). It was work that the company had never done before; therefore, the bargaining unit members had never done this work.

52Further, counsel states that the evidence establishes that the manner of delivery is directed by Nelson's customers. The only instances (apart from Wilfred Bester) when bargaining unit members delivered material were when customers specifically requested single axle or tandem loads.

53The company relies on the "resignation" of Wilfred Bester in June of 1994. Counsel states that "you can't have a replacement worker if you don't have a worker". Upon his resignation, there were no tractor trailer drivers in the bargaining unit. This whole category of vehicle covered by the collective agreement has become a "void". There is no longer any member of the bargaining unit who can deliver by tractor trailer. Therefore, when Mr. Bester quit, the company was not prohibited from having his work done by someone else. Counsel further questions how, even if the bargaining unit includes a tractor trailer, the Board could direct the company to use one less independent broker during the strike/lockout.

54Counsel also submits that the relevant time in determining bargaining unit work for the purposes of section 73.1 is the time of the application. As of the date of this application, there were nine tandem drivers and one single axle driver in the unit.

55Counsel also relies on, among other things, Articles 4.01(a), 12.02 and 14.01 of the collective agreement. Article 12.02, it is submitted, limits the company with respect to the use of independent brokers to perform tandem and single axle deliveries, but makes no mention of any limitation with respect to tractor trailer deliveries.

56Counsel also reviewed the documentary evidence and summaries concerning the company's activities. Excluding the deliveries made to the Pinecrest and Milliken Depots, the volume of materials delivered in August of 1994 is only 58.81 percent of what was delivered in August of 1993. He states that the deliveries to the depots must be excluded from any comparison made between 1993 and 1994, since these were new activities.

57Finally, counsel reviewed some decisions of the Board applying section 73.1. In his submission, to the extent that the purpose of section 73.1 of the Act is to inhibit the company's ability to carry on work during the strike, the economic power of this union is derived from the company's inability to use tandem or single axle trucks to perform deliveries.

58Counsel for the union states that this case rests on the prohibition in section 73.1 respecting the performance of certain "work", and how this "work" is defined both in the Act and in the cases. It is the position of the union that since August of 1994, independent brokers are performing the work of the bargaining unit. Not only has the company failed to discharge its onus and prove that they have not been doing so, but the evidence shows they are.

59The Board has stated in its prior decisions that the concept of "work" in section 73.1 must be broadly defined. An employer cannot escape the effect of section 73.1, for instance, by having work done in a different manner than before the strike/lockout, if it achieves the same result. Further, "work" for the purposes of section 73.1 is not limited by the specific provisions of a collective agreement. A reading of a collective agreement may lead to a narrower definition of the entitlement to certain work by the members of the bargaining unit, than a reading of section 73.1.

60On the facts of this case, the work of the employees in the bargaining is to deliver aggregate by truck. In two ways, the company has violated section 73.1. First, it has violated section 73.1 by having tractor trailers continuing to perform deliveries, where it is clear that the work of delivering stone by tractor trailer is work which was performed by a member of the bargaining unit. Second, it has violated section 73.1 because the company has transferred work that would have been performed by tandem trucks, to tractor trailers belonging to independent brokers.

61With respect to the first, the evidence shows that amongst the representative companies, there are some for whom Mr. Bester delivered material during 1993, which have received material by tractor trailer during the strike/lockout.

62Counsel characterizes as absurd the argument by the company that Mr. Bester's resignation changed the nature of the bargaining unit work for the purposes of section 73.1. The only effective interpretation, it is urged, is to look at the work being performed at the time the strike/lockout commenced.

63With respect to the second element of his argument, counsel states that the company has the onus to show that none of the deliveries made by tractor trailers in August of 1994 would have been done by tandem trucks, but for the strike/lockout. They have failed to discharge the onus. The Board should draw the inference that work has been transferred from tandem trucks to tractor trailers. It is simply not plausible to suggest that the sales staff of Nelson Quarry would refrain from ever suggesting to customers that they have their material delivered by tractor trailers instead of tandem trucks during the strike/lockout. The evidence is that the company's use of independent brokers has dramatically increased in 1994 as compared to 1993.

64Counsel acknowledges that the issue of remedy is very difficult in this case. The union seeks as remedy the following:

(a) an order that the union be entitled to monitor the activities of the sales and dispatch staff when they deal with Nelson Quarry customers. The union seeks in this regard an order similar to the one to which the parties consented in Diamond Taxicab Association (Toronto) Limited and Associated Toronto Taxi-Cab Co-operative Limited, decision dated August 29, 1994 (unreported).

(b) an order that the company be prohibited from making any deliveries during the strike/lockout. The union accepts that prior to the lockout, independent brokers were engaged by Nelson to do deliveries. However, in this situation, it is not possible to establish exactly what work would have been performed by Mr. Bester as opposed to an independent broker. Since no particular block of work can be tied to either Mr. Bester or an independent broker, the company is unable to establish that any tractor trailer delivery is work permitted by section 73.1. As an application of the reverse onus found in section 73.1(9), the company should not be permitted to perform any work that it cannot establish is specifically allowed by section 73.1. To do otherwise would be to deny the union a remedy where a violation has been established. Such a remedy is also consistent with the purpose of section 73.1.

(c) an order that if the company continues to perform deliveries using tractor trailers, that it pay damages on an ongoing basis to the union reflecting the percentage of tractor trailer deliveries which Mr. Bester had performed before the strike/lockout. The damages would be based on the delivery costs of the shipments. Such an order of damages would take into account the unjust enrichment accruing to the company out of its violation of section 73.1, and would compensate the union for the loss of bargaining power which it suffers as a result of this continuing violation.

65In argument of both counsel, I was referred to the Board's decisions in Famous Players Inc., [1993] OLRB Rep. Dec. 1270 ("Famous Players #1"); The Great Atlantic & Pacific Company of Canada, Limited, [1994] OLRB Rep. Mar. 303; Canada Stamping and Dies Limited, [1994] OLRB Rep. Mar. 213; Famous Players Inc., [1994] OLRB Rep. Feb. 131 ("Famous Players #2"); Toromont, a division of Toromont Industries Ltd., decision dated August 9, 1994 (unreported) [now reported at [1994] OLRB Rep. Aug. 1149]; Mississauga Hydro Electric Company, [1994] OLRB Rep. July 883; Labatt's Ontario Breweries, [1994] OLRB Rep. June 704; Marriott Management Services, [1994] OLRB Rep. June 729 and The Canadian Red Cross Society Ontario Division, [1994] OLRB Rep. Jan. 34.

66Section 73.1 provides:

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 a 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 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.

67Some of the cases to which I was referred comment on the purposes of section 73.1. In general, the Legislature has determined that it ought to enhance a union's ability to wage a successful strike by limiting the extent to which a struck employer can carry on business. As a corollary, the sections can likewise be seen as limiting the effectiveness of a lockout as an economic weapon.

68Of course, reference to the purposes of section 73.1 is helpful only to a point; the specific language found in section 73.1(5) and (6) must be applied to determine the ambit of the prohibition against using replacement workers, and therefore the scope of an employer's ability to carry on business during a strike or lockout. In Labatt's Ontario Breweries, supra, the Board stated:

19. 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.

20. 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.

21. 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.

69The Board also noted in Labatt's Ontario Breweries that the replacement worker prohibitions may have a different impact on a given labour dispute depending on the circumstances. The extent to which these provisions serve to enhance a union's bargaining strength may well vary depending on the bargaining strength of the employees wholly apart from these provisions. There will be some bargaining units that are highly specialized and which constitute a critical part of an employer's enterprise. Such a bargaining unit may well have economic strength disproportionate to the number of employees which are encompassed by the unit, as compared to the total work force. As well, there will be bargaining units whose very comprehensiveness means that it will be virtually impossible for an employer to continue business during a strike or lockout.

70On the other hand, there will also be bargaining units which have limited economic strength, and for which the provisions of section 73.1 may provide cold comfort in the event of a strike or lockout. Implicit in the employer's arguments in this case is the conclusion that this is one of those bargaining units.

71This case ultimately narrows down to two issues: a) the application of the phrase "the work of an employee in the bargaining unit that is on strike or is locked out" as used in section 73.1(5)(2), to the facts of this case, and b) the determination of how work is distributed as between the members of the bargaining unit and the independent brokers and the extent to which this distribution of work is controlled by Nelson, or by its customers. In interpreting the phrase "the work of an employee in the bargaining unit", the Board has stated that the contrast between sections 73.1(5)2 and 73.1(5)3 suggests that its meaning is not confined to work ordinarily performed by bargaining unit employees, but may be broader: see The Great Atlantic & Pacific Company of Canada, Limited, supra. The Board has also stated that while the collective agreement and past practice may provide considerable assistance in determining "the work of an employee in the bargaining unit", these sources are not necessarily conclusive: Famous Players #1, and Canada Stamping and Dies Limited, supra. In Famous Players #1, the Board stated:

44. The fact that a function is specified in the collective agreement is persuasive evidence that the particular function should be considered the work of bargaining unit members (although perhaps not exclusively). Similarly, past practice may provide some useful guidelines: the "work of employees in the bargaining unit" is what employees, in the past, have customarily done. But the impact of a strike may well prompt an employer to modify the way in which work is performed, so that there may not be an exact correlation with what went before. Individuals may be doing "the work of employees in the bargaining unit" within the meaning of section 73.1, even though the work might not have been done that way before.

45. A hypothetical example may illustrate what we mean.

46. Suppose the employer's operation required employees to handle material and move boxes. Suppose that they ordinarily did that work by using motorized lift trucks, and that there is a "lift truck driver" rate in the collective agreement. Clearly the operation of a lift truck would be considered bargaining unit work. But so is moving boxes. Thus, if the employer hired six new workers during a strike to move the boxes manually, that would still be "bargaining unit work"~ even though members of the bargaining unit may not have performed that precise function before.

[emphasis added]

72The Board has also observed, in Canada Stamping and Dies Limited that it is better to take an approach which looks at the substantive, regular content of the work of an employee in the bargaining unit, rather than scrutinizing every function no matter how incidental to a person's normal job.

73I shall deal first with the situation of Wilfred Bester, and then the rest of the employees in the bargaining unit. Even on a fairly narrow reading of section 73.1(5)2, there is no doubt that independent contractors, or drivers employed by independent contractors, are performing work during the strike lockout which had been performed by a bargaining unit member, Mr. Bester, prior to this time. Even accepting the company's theory that there is a distinction between the work of the tandem and single axle truck drivers, and tractor trailer drivers, Mr. Bester's work consisted of the delivery of aggregate for Nelson by tractor trailer. Independent contractors have been, since August 3rd, regularly engaged to deliver aggregate for Nelson by tractor trailer.

74There is no evidence that the employer has taken any measures to avoid engaging independent brokers to perform work which at least one member of the bargaining unit would have performed but for the strike; the employer does not even advance such an argument. The argument of the employer is that upon Mr. Bester's resignation, the work performed by members of the bargaining unit for the purposes of section 73.1 no longer includes the delivery of stone by tractor trailer.

75The union disputes that Mr. Bester's resignation is genuine. I do not need to decide this issue, for even assuming that it is a bona fide resignation, I do not find that it has the effect on the application of section 73.1 urged by the employer. It would be inconsistent with the thrust of the provisions of section 73.1 to take account of changes to the composition of the bargaining unit after the strike/lockout starts. The phrase "the work of an employee in the bargaining unit" necessarily refers to the work performed by employees in the bargaining unit before the start of a strike or lockout. After all, once the strike or lockout starts, no one in the bargaining unit is performing any work.

76Further, the integrity of the prohibitions found in section 73.1 is better preserved by defining the work of employees in the bargaining unit by reference to pre-strike, "normal" times. It would not be surprising if events occur during a strike or lockout which otherwise would not have; the Board would be relying on an uncertain and shifting foundation to give such effect to the actions of parties or individuals which occur against the backdrop of job action with its attendant pressures and considerations.

77I am therefore satisfied that during this strike/lockout, Nelson has engaged independent contractors to perform the work of an employee in the bargaining unit, in violation of section 73.1(6)4 and 5.

78Turning to the members of the bargaining unit driving tandem and single axle vehicles, it was argued by the company that there is a significant difference between the work of these persons and the work of the independent brokers. It was asserted that the work of the bargaining unit (apart from Mr. Bester) consisted of and is limited to the delivery of crushed stone by these particular vehicles. As I have set out earlier, it is the position of the union that the work of employees in the bargaining unit for the purposes of section 73.1 can be described simply as the delivery of crushed stone.

79The collective agreement does not specifically limit the functions of the employees in the bargaining unit. In general, the unit is described as "dependent contractors". Rates of pay vary by types of vehicle. Some of the provisions apply only to drivers of certain vehicles. Article 12.02 provides:

12.02 The Company shall not contract out to brokers any single axle or tandem deliveries to its customers if such deliveries can be performed by members of the bargaining unit within two (2) hours of the Company's request.

80Although this provision provides a guarantee of certain work to members of the bargaining unit, it does not establish that the drivers of single axle or tandem trucks have a preferential claim to all deliveries of stone undertaken by Nelson. If anything, by its omission of tractor trailer deliveries, it suggests that the parties see the work of delivering stone by tractor trailer as distinct from the work of delivering stone by tandem or single axle truck. Further, the language of this provision is not "any deliveries" or "all deliveries", but only "single axle and tandem deliveries". This also suggests that the work of making deliveries by different types of vehicles is not interchangeable.

81Taken alone, the collective agreement language is of limited assistance in defining the work of employees in the bargaining unit for purposes of section 73.1. I have determined however, on the basis of the evidence concerning the actual practices of the company, that it is not plausible to describe the work of the employees in the bargaining unit as simply the delivery of crushed stone, undifferentiated from the work of persons outside the bargaining unit. I find that, apart from Mr. Bester, the company does not fill its customers' orders using the dependent brokers and the independent brokers interchangeably. The work of both groups of brokers is defined and limited by the type of vehicle driven.

82The evidence reveals that there are several factors which influence whether a particular type of vehicle is used to deliver stone. The most important factor is the delivery cost. Delivery costs are fixed costs which are passed on directly by Nelson to its customers based on the amount Nelson pays the brokers. It was not controversial that delivery costs per tonne are highest for deliveries by single axle trucks, next highest for deliveries by tandem trucks, and lowest for deliveries by tractor trailers. Where the amount of stone ordered by a customer is such that there may be an option as to which type of vehicle is used for the delivery, it is understood that the costs for delivering the material will vary according to the type of vehicle chosen. The cost of delivered material is negotiated and settled prior to delivery. This final price contains a portion reflecting delivery costs, based on the type of vehicle to be used, and the cost of the materials.

83Another factor taken into account in determining the type of vehicle used to deliver stone is the location to which the material is to be delivered. There are some locations, such as the inside of buildings under construction or narrow roadways, where a tractor trailer delivery is impractical. A third factor described by one customer of Nelson is the ability of tandem trucks to make small, shallow drops of stone at several locations at the delivery destination.

84All of the above points to three general conclusions: (a) that in the ordinary course, the determination of the type of vehicle used to make a delivery is set at the time a customer accepts a price for delivered material from Nelson, which price reflects delivery costs for a specific type of vehicle; (b) where the amount of material ordered is such that there is an option as to which type of vehicle is used to make the deliveries, a customer is likely to choose the cheapest alternative, absent special factors such as limited access; (c) effectively, the decision by a customer as to quantity, price or type of vehicle determines whether work is assigned to members of the bargaining unit, or brokers outside of the bargaining unit.

85Members of the bargaining unit testified as to deliveries they have made in tandem trucks to sites where tractor trailers were also making deliveries from Nelson, even on the same day. As I have indicated, the documentary evidence suggests that this is an uncommon occurrence. It falls far short of establishing that the two types of vehicles are interchangeable in making deliveries. Further, given the other evidence concerning the cost of deliveries and the way transactions occur between Nelson and its customers, I am unable to conclude that if there were tandem trucks and tractor trailers delivering the same material to the same site, this is a result of anything other than a decision made by the customer. I find it unlikely that in a situation where a customer has contracted with Nelson for delivered material, Nelson would (other than in exceptional circumstances) use a different type of vehicle than was the basis of the agreed price. If customers are likely to choose the cheapest alternative, likewise it is fair to conclude that Nelson will also use the cheapest way of fulfilling the contract.

86I conclude, therefore, that there is a distinction between the work performed by members of the bargaining unit (apart from Mr. Bester) and the work performed by the independent brokers. The work of delivering stone by tandem axle truck, by single axle truck, and by tractor trailer is not the same to the extent that the work opportunities of any of the drivers are defined and limited by the type of vehicle they drive. As is evident from the above, I have also found that work opportunities are distributed as between the tandem truck drivers, the single axle truck driver and the other drivers, on the basis of a customer's decision either to request a type of vehicle specifically, or to agree to buy material at a price or in a quantity which is understood to be based on delivery by a certain type of vehicle.

87Since the beginning of the strike/lockout, Nelson has not engaged any tandem or single axle trucks to perform deliveries for it. This, however, is not determinative, for the union asserts that the work of employees in the bargaining unit has been transferred to the tractor trailers of the independent brokers, or, to put it another way, that Nelson is having the same work done by a different method. The union relies on the excerpt from Famous Players #1 set out in paragraph 73 above.

88The parties spent some time on statistical comparisons of the company's activities in 1993, and during the strike/lockout. Since the number of deliveries being made by independent brokers has increased significantly in August of 1994 over August of 1993, the union asks me to draw the inference that this can only be accounted for by the transfer of the work of employees in the bargaining unit to the independent brokers. In the absence of any other evidence, this inference would be difficult to resist. Having carefully examined the evidence, however, I am satisfied that the employer is not having the work of the bargaining unit employees performed under a different guise.

89The evidence points to a variety of different explanations for the increase in business to Nelson of material delivered in tractor trailers. For instance, one customer, Canada Building Materials, which had in the past bought stone from the Uhtoff quarry owned by Nelson Aggregate Co., decided in 1993 to switch to Nelson Quarry. The agreement to purchase this stone was based on tractor trailer delivery and was concluded in the first part of 1993, well prior to the strike and even to the collective bargaining. The first shipments pursuant to this agreement were made either in July or November of 1993.

90A significant portion of the business in 1994 is related to the discontinuance of the railway shipment of stone from the Uhtoff Quarry in Orillia to Nelson Aggregate Co.'s Milliken and Pinecrest depots, both located in the Metropolitan Toronto area. This decision was made during the fall of 1993, but shipments from Nelson did not start until sometime in 1994, perhaps as late as August. It was not suggested that the decision to ship stone from Nelson to these two depots was taken to avoid the consequences of a strike/lockout. Nor was it suggested that I should analyze the factors that led to the shipment of this stone by tractor trailer any differently than for a non-arm's length customer of Nelson. Having regard to the quantities of stone being shipped by tractor trailers and by other vehicles, I am satisfied that this is not work which would have been performed in the general course by members of the bargaining unit driving tandem and single axle trucks.

91There was also evidence regarding other new business (for instance, the supply of stone to an asphalt plant owned by Associated Paving) which I am satisfied would not have been assigned in the general course to members of the bargaining unit.

92I do not accept the company's argument that where work performed during a strike/lockout is new in the sense that it reflects a new customer, or work which had otherwise not been performed before, such work is by definition not "the work of an employee in the bargaining unit". As the Board stated in Famous Players #1, individuals may be doing "the work of employees in the bargaining unit" within the meaning of section 73.1 even though the work might not have been done that way before. In the instances outlined above, however, I am satisfied that the delivery work in connection with those activities is not work which bargaining unit members would have performed but for the strike.

93Even factoring in the above explanations for the increase in Nelson's use of independent brokers during the strike, the evidence does suggest that some of the increase is caused by customers who have chosen to purchase tractor trailer loads of stone in place of tandem loads. As outlined above, some of Nelson's customers that regularly bought tandem loads of stone in 1993 have received tractor trailer shipments in August 1994. Does this constitute a violation of section 73.1? The answer lies in an examination of the typical transaction to purchase stone, after the beginning of the strike.

94The evidence is that, after August 3rd, Nelson's staff were instructed to and did inform its customers that Nelson could not offer material to be delivered by tandem and single axle trucks. When a customer which otherwise was interested in purchasing material to be delivered by tandem or single axle truck is informed of this, it appears likely that one of three results ensues. First, the customer may decide to go elsewhere for its material. There was evidence, for instance, that the tandem truckloads of stone which one customer uses on a regular basis in its roadbuilding business is now obtained from a competitor of Nelson. Second, the customer may decide to send its own vehicles to pick up the material. This has also occurred. Third, the customer may decide that it is just as happy buying a larger quantity of stone, to be delivered by tractor trailer. There was no direct evidence that customers have chosen this third option; however, I find it a reasonable inference from all the evidence before me, particularly in the few instances where Nelson's customers have had the same type of material delivered to the same site by tractor trailer during the strike/lockout, as had been delivered by tandem vehicles in 1993. Assuming, therefore, that some customers have chosen the third option, the result would have been that Nelson engaged an independent broker to perform the work.

95I note here that the documentary evidence does not indicate that during the strike/lockout, any tractor trailers have delivered stone out of Nelson bearing only a tandem -weight or single axle weight load. In other words, it does not appear, and the union does not dispute this, that Nelson has used tractor trailers to deliver less than full tractor trailer loads of stone.

96It is fairly clear that the first and second results sketched out above do not involve the employer in a breach of section 73.1 (assuming an arm's length, commercial relationship between Nelson and its customers and dealing here only with the tandem and single axle vehicle operators). The fact that the third result involves the use of independent brokers also does not bring Nelson in violation of the replacement worker provisions. There is nothing in section 73.1 which prevents Nelson from continuing to engage independent brokers driving tractor trailers in a manner consistent with its prior practices. There is no evidence that Nelson has induced its customers to change an order for a tandem or single axle load of stone to a tractor trailer load, for instance by manipulating the pricing. If it can be said that some of the customers which bought tractor trailer loads of material during the strike/lockout would not have done so but for the strike/lockout, this is a result in the hands of Nelson's customers, and not of Nelson.

97I am therefore satisfied that to the extent there has been an increase in August of 1994 over August of 1993, in the amount of deliveries being made by independent brokers, this increase is not attributable to a "transfer" of work of employees in the bargaining unit (save Mr. Bester). Nor is it attributable to a decision by the employer to have the same work performed, for the same end, by a different method. I find the facts of this case distinguishable from that portion of Famous Players #1 referred to by union counsel, wherein the Board canvassed the effect of a change in work method on the application of section 73.1(5).

98If there is an increase in the number of deliveries by tractor trailer, it is because Nelson's customers have increased their demand for such. It may be that part of this increased demand is a function of the strike/lockout, and part of it is unrelated to the strike/lockout. The key point is, however, that in neither case has Nelson changed the manner in which it conducts its business, except to inform its customers of its inability because of the strike/lockout to provide deliveries of stone by tandem or single axle trucks. In sum, I am not persuaded that the Act prohibits this employer, in the particular factual context of this case, from meeting an increased demand which has not been shown to be bargaining unit work.

99It may appear that my findings here are inconsistent with the decision of the arbitrator on June 27, 1994, in which he found that the company had violated the collective agreement in withholding from the single axle and tandem truck drivers aggregate loads which they would have made in the ordinary course of the employer’s business. The findings of the arbitrator appear to suggest that there is some claim to the work performed by tractor trailers, by members of the bargaining unit driving tandem and single axle trucks. If this is so, then the bargaining unit (save in Mr. Bester's case) is left in a worse position under section 73.1 of the Act, than under the terms of its collective agreement.

100It is somewhat difficult to assess the scope of the findings of the arbitrator. On my review of that decision, it appears that the issue of damages, which has not yet been resolved, may well be the stage at which the precise implications of that decision are determined. In the absence of a more precise determination, I do not find the arbitration decision to be of much assistance in the present case.

101In one respect, however, I take account of the arbitration decision. The strike/lockout commenced on March 7th. To the extent that the findings of the arbitrator make the events from December 23 to June 27 an anomaly in determining the regular work of the employees in the bargaining unit, I arrive at my findings by looking at the manner in which work was performed before this period. Since an arbitrator has found that the employer's manner of operations during this period was in some measure in violation of the agreement, I do not rely on this manner of operations in my determination of the meaning of the "work of an employee in the bargaining unit".

102In other words, I arrive at my findings even assuming that Nelson continued to operate until the advent of the strike/lockout in the same manner it did during May to August of 1993, accepting tandem and single axle deliveries as well as tractor trailer deliveries and assigning such work to the employees in the bargaining unit.

103Prior to the conclusion of the company's case, the union raised allegations concerning deliveries which were made during the course of the hearing by Angelo Di Adamo, a member of the bargaining unit. I ruled that I would hear the evidence concerning the new allegation as part of this case. The parties agreed that to the extent the hearing of this issue required the company to recall any of its witnesses, cross-examination would be limited to this new issue. I need not deal with this issue at length. I am satisfied on the balance of probabilities that Mr. Di Adamo was not performing work for Nelson delivering stone, but was picking up stone for his own use. Among other things, the documents show that on five other occasions in August of 1994, the construction company owned by Mr. Di Adamo bought stone from Nelson which was delivered by an independent broker.

Remedy

104I now turn to the issue of remedy with respect to the violation of section 73.1 that I have found. The union has requested that it be permitted to monitor the company's interchanges with its customers, relying on the terms of the consent order in Diamond Taxicab Association (Toronto) Limited, supra. Since I have found a violation with respect to the work formerly performed by Mr. Bester only, and this finding does not depend on the particularities of the dealings between Nelson's staff and its customers, I do not find such a remedy appropriate. This does not mean that some sort of continuing disclosure by Nelson of its activities may not be appropriate, as part of my remedial directions. I return to this later.

105The union has also requested that the Board simply order Nelson to cease all deliveries of material for the duration of the strike/lockout, on the theory that the company is unable to prove that any particular load of material delivered by an independent broker is a load that Mr. Bester would have delivered but for the strike. There are several difficulties with this. First, neither can the union establish that any particular load of material would have been delivered by Mr. Bester but for the strike. Second, there is no doubt that the company has regularly engaged independent brokers, consistent with its collective agreement, to deliver material by tractor trailer. There is no doubt that a portion of the work it is now having performed by independent brokers is consistent with this past practice. Finally, in addition to the disproportion of such an order in relation to the magnitude of the violation, it would have a severe impact on the rights of others such as the production workers and the independent brokers.

106I do not find reference to the reverse onus helpful in fashioning an appropriate remedy, as suggested by counsel for the union. By the very words of section 73.1(9), the reverse onus applies to the determination of whether an employer has acted contrary to that section. It does not mean that where both parties have difficulty in pinpointing the exact transactions which are a violation of the section, the Board ought to issue an order which covers all of the company's activities, even if a portion of them are certainly permissible under section 73.1.

107I therefore decline to grant the direction in the broad terms requested by the union. It is not clear to me as yet that a direction which is more appropriate to the extent of the violation of section 73.1 is not available. Although the fluidity of the line between Mr Bester's work and the work performed by independent brokers makes it difficult to make findings and remedies based on particular deliveries, certain things are ascertainable and quantifiable. Here, there is a precise record in the form of haulage reports of the activities of all the tractor trailer drivers prior to the strike. It is possible to determine the amount of work which Mr. Bester performed for the company prior to the strike/lockout, compared to the independent brokers. The Board has recognized the idea that in order to give effect to section 73.1, it may be appropriate to assess the amount or proportion of work performed by employees in the bargaining unit prior to a strike or lockout relative to non-bargaining unit personnel. This may be the only sensible way to approach those situations where the functions performed by these two groups are not easily distinguishable.

108The union has requested that I take account of the proportion of the work of delivering material by tractor trailer that Mr. Bester had performed prior to the strike, in the context of its request for what it characterizes as "unjust enrichment" damages. These damages, in the submission of the union, should be paid if the employer continues to make deliveries by tractor trailer.

109Implicit in the union's request for this type of unjust enrichment relief is the assumption that it is warranted where the Board finds itself unable to fashion a practicable cease and desist direction against further violations of section 73.1. I do not determine at this point whether I should order such a remedy. If it is available in this case as a prospective measure, it is likely only warranted where it is not possible for the Board to issue a meaningful cease and desist direction. Until I have received the parties' submissions I am not satisfied that this cannot be done. I therefore defer consideration of this issue pending my findings on the appropriate terms of a cease and desist order, if any.

110The parties are accordingly directed to make submissions as to the appropriate formula, if any, for determining the scope of a cease and desist direction, having regard to my findings above. These submissions should consider, for instance, whether the Board should restrict Nelson to a certain number of deliveries in a given period, and if so, how the Board should arrive at both the number of deliveries and the period of time covered. The parties should consider how daily, weekly or seasonal fluctuations in work should be taken into account, and whether in support of any cease and desist direction, the Board ought to order periodic disclosure by the company of its activities.

111These written submissions shall be delivered to the Board and to counsel for the parties by no later than 5:00 p.m., January 16, 1995.

112The parties have agreed that I should remain seized of the issue of damages, if any, which may be owing as a result of the employer's past violations of section 73.1.