Canadian Union of Public Employees, Local 1287 v. The Regional Municipality of Niagara, 1997 CanLII 15582

[1997] OLRB REP. JULY/AUGUST 733

1726-96-M Canadian Union of Public Employees, Local 1287, Applicant v. The Regional Municipality of Niagara, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: C. M. Mitchell and Steve Leavitt for the applicant; Roy C. Filion, Christopher M. Little, John Nicol, Susan Reid, Jim Hagar and Scott Sanders for the responding party.

DECISION OF VICE-CHAIR GAIL MISRA AND BOARD MEMBER R. R. MONTAGUE; August27, 1997

1. This was an application for an interim order brought by the Canadian Union of Public Employees, Local 1287 ("CUPE" or the "union"), relying on the provisions of section 98 of the Labour Relations Act, 1995 (the "Act"). It was heard on September 19, 1996. The majority of the Board (Board Member Ronson dissenting) issued a short decision on September 20, 1996, granting in part the interim order requested, and indicating that the Board's reasons would follow at a later date. These are the reasons for our decision.

2. In reaching our decision we relied upon the pleadings of the parties, the declarations submitted in support of the pleadings, and the oral submissions of counsel. For the purpose of providing context, what follows is a recitation of the relevant facts pleaded.

3. CUPE represents approximately 670 inside and outside workers in seven regional depart­ments or offices in the Regional Municipality of Niagara (the "Region" or "employer"). A collective agreement between the union and the employer expired on March 31, 1996. The parties exchanged collective agreement proposals on May 10, 1996, and then between May and July, 1996 negotiated the approximately 70 proposed amendments each of them wanted to the collective agreement. On July 10th the parties reached a tentative agreement, and on July 12, 1996, they signed a Memorandum of Settlement.

4. The Region, in the course of bargaining, had proposed an amendment to the recognition clause of the collective agreement such that two existing bargaining unit classifications, Supervisor of Social Services and Senior Clerk-Social Assistance, would be excluded from the bargaining unit. The Region employs six Supervisors of Social Services and one Senior Clerk-Social Assistance. The Supervisors of Social Services apparently supervise 77 caseworkers with an annual case load of approximately 9,100 cases. The Senior Clerk-Social Assistance supervises the office and administrative staff in the Social Assistance Division of the Region. The status of these classifications had been discussed by the parties on a number of occasions over at least the past ten years.

5. In November 1988 the employer applied to the Board under what is now section 114(2) of the Act to have the employee status of the Social Services Supervisors, among others, determined. The union apparently objected to the exclusion of the individuals in these positions from the bargaining unit. On March 30, 1989 Board Officer Examinations commenced, however on March 31, 1989 the employer withdrew its application. Since that time, it is suggested, the Region has not applied for a determination of the employee status of the persons in either of the two classifications.

6. As a result of the negotiating in this round of bargaining, in addition to all of the other matters dealt with, the parties agreed upon the exclusion of the Supervisor of Social Services and Senior Clerk-Social Assistance classifications from the bargaining unit. The Memorandum of Settlement was subject to ratification by the union members, and was put to a vote on July 31, 1996.

7. On July 31, 1996, Syd Ryan, President of the Ontario Division of the Canadian Union of Public Employees, Michael Stokes, the Ontario Municipal Employees Coordinating Committee Coordinator and a National Representative of the union, and Joe Bouchard, Acting Assistant Regional Director of the union, attended the ratification meeting and discouraged the union's members from voting to ratify the Memorandum of Settlement. None of these individuals had been on the union's negotiating committee. The result of the ratification vote was that a majority of the membership voted to reject the Settlement.

8. On August 6, 1996 the parties met with a conciliation officer, and on August 29, September 13 and 14, 1996 they met with a mediator. The union held a strike vote on August 14, 1996, at which time the majority of the union membership voted in favour of a strike. A "no board" report was issued on August 15, 1996.

9. The Region claimed that at no time subsequent to the July 31, 1996 ratification vote did the union specifically refer to the issue of excluding the Supervisor of Social Services and the Senior Clerk­Social Assistance classifications from the bargaining unit. It was therefore the Region's view that this was not a strike issue. The union denied the Region's contention, and claimed that the status of these positions was explicitly raised at every meeting the parties had from the time that the membership rejected the tentative agreement. At the first meeting after the ratification vote, on August 6, 1996, the union claimed it gave the employer written proposals outlining its position, including a position that there would be no additional exclusions.

10. The union also claimed that at that meeting a representative of the union took the employer representatives through all of the union's proposals, including that it was not agreeing to the exclusion of any positions from the bargaining unit. In later discussions the union alleged it continued to reiterate its position regarding Article 3.01.

11. By a letter dated August 30, 1996 the Region advised the union that the Niagara Regional Council had resolved to implement the terms of the Memorandum of Settlement unilaterally if there was no settlement prior to September 1, 1996. On that day the Region also informed the Supervisors of Social Services and the Senior Clerk-Social Assistance that it wanted to meet with them on September 3, 1996 to discuss the status of these classifications in light of the Council resolution.

12. On the morning of September 3,1996 the union informed the Region it would be commenc­ing its strike at 12 noon that day. On the same morning representatives of the Region apparently met with the seven bargaining unit members who fill the two classifications in issue. These individuals were allegedly informed that their classifications were being transferred outside the bargaining unit. After the meeting the union was able to meet with these seven persons, and at that point was informed of the employer's plan. Shortly after the meeting between the seven bargaining unit members and the Region, and just prior to the strike commencing, representatives of the Region gave each of the seven employees a letter, the text of which follows:

During the course of recent negotiations, the parties agreed to transfer the positions of Social Services Supervisor and Senior Clerk to non-union status effective with the implementation of the collective bargaining. The Corporation, by direction of Regional Council, has implemented the terms and conditions of the Memorandum of Settlement agreed to by CUPE Local 1287 and the Region of Niagara on July 12, 1996. effective September 1,1996.

Therefore, please be advised that your present position will be transferred to non-union status immediately. The parties agreed to the proviso that an offer would be issued to the incumbents providing first right of refusal to the transferred position. In keeping with this agreement, you are hereby given notice that you have until 11:00a.m. Tuesday, September 3, 1996 to accept or decline this transfer in writing. If you choose to accept this transfer it will take effect immediately. Conversely, if you choose to decline this transfer, you will be provided notice of layoff in accordance with the collective agreement. Please affix your signature and date the attached sheet, noting your acceptance or decision to decline this transfer.

Further details will be supplied through Mr. John Cooper. I trust he will be of assistance in answering your questions concerning the transfer of these positions. I will also be available to discuss this matter with you, and can be contacted at extension #607.

13. The union took the position that the letter was inaccurate since the Memorandum of Settlement had not been ratified so that it was incorrect to state that the union had agreed to the transfer of positions out of the bargaining unit, or that the union had agreed to any protocol. Since the Settlement had been rejected, there was no longer any agreement in place. All seven employees allegedly accepted the transfer out of the bargaining unit. The strike commenced at 12 noon on September 3, 1996.

14. It is noteworthy, although not surprising, that neither the Region nor the union had a declaration from any of the affected employees. The union filed the declaration of Steve Leavitt, the president of the Canadian Union of Public Employees, Local 1287. According to his declaration, these seven employees had been driven across the picket line daily in car poo1s. No bargaining unit members, other than these seven individuals, had crossed the picket line to attend work. The union asserted that some of these persons were union officers, stewards, or chairs of union committees, so that they had been put in a difficult position as a result of the employer's ultimatum. In addition, it was asserted that these seven bargaining unit members had been prevented from participating in the strike and joining their fellow bargaining unit members on the picket line. The union believed these persons were having to do bargaining unit work.

15. It was asserted that the consequences of the employer's action were significant for both the union and the individuals concerned. The affected employees were being prevented from exercising their right to strike and to engage in lawful picketing activity. They had been threatened with the loss of their jobs if they had not exercised the employer's option of leaving the bargaining unit prior to the commencement of the strike. By performing bargaining unit work, Mr. Leavitt asserted that the union's ability to mount a successful strike was undermined.

16. Re and other bargaining unit members on the picket line found it upsetting that bargaining unit employees were being taken across the picket line, and it was his opinion that the act of taking these seven employees into work was undermining morale on the picket line. The unilateral exclusion of employees from the bargaining unit also undermined the morale of the union's membership. Finally, it was Mr. Leavitt's belief that an interim order would not adversely affect the employer in any way as the positions in question had been in the bargaining unit for as long as anyone could recall.

17. John S. Nicol, the Director of Human Resources for the Region, made a declaration in support of the Region's response. He asserted that the seven affected employees wished to have their bargaining unit status clarified before the strike commenced, and that they considered themselves to be management. Mr. Nicol asserted that the seven employees were not pressured to accept the transfer out of the bargaining unit and had not been forced to cross the picket line. Finally, Mr. Nicol believed that denying the union's application for interim relief would not undermine the union's ability to engage in a lawful strike. There was nothing in Mr. Nicol's declaration regarding any possible harm which the Region may suffer if an interim order in favour of the union was made.

ARGUMENTS

18. Since the parties made reference to provisions of the Labour Relations Act, 1995 (the "Act") and the Statutory Powers Procedures Act ("SPPA"), for ease of reference, section 98 of the Act and sections 16.1 and 32 of the SPPA are reproduced below:

Labour Relations Act, 1995

98. (1) On application in a pending proceeding, the Board may make interim orders concerning procedural matters.

(2) The Board shall not make an order under subsection (I) requiring an employer to reinstate an employee in employment.

Statutory Powers Procedures Act

16.1 (l)A tribunal may make interim decisions and orders.

(2) A tribunal may impose conditions on an interim decision or order.

(3) An interim decision or order need not be accompanied by reasons.

32. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by­laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

33. The parties made submissions about whether or not the Board had the jurisdiction to grant the interim order requested. The union argued that pursuant to section 98 of the Act the Board had the jurisdiction to provide interim relief of the sort requested here. In the alternative, the union argued that pursuant to sections 16.1 and 32 of the SPPA, the Board had the power to grant interim relief.

34. The union argued that the test the Board should apply in deciding whether to grant interim relief in this application was to consider whether the union had an arguable case for the remedy requested, and if so, the Board should consider the potential harm of either granting or not granting the relief sought (see Loeb Highland, [1993] OLRB Rep. March 197, and Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019).

35. The employer took the position that section 98 of the Act limited the Board's power to make interim orders on purely procedural matters, as opposed to substantive matters. With respect to the application of the SPPA, the Region argued that there was no conflict between section 98 of the Act and section 16.1 of the SPPA, but rather, section 98 qualified the effect of section 16.1 by indicating that the Board's jurisdiction to make interim orders was limited to making interim orders with respect to procedural matters. Since there was no conflict, it was argued, section 32 of the SPPA did not apply. Further, since the issue in this case was not of a procedural nature, it was argued that the Board should not make the order requested.

DECISION

22. In the recent past the Board has issued its reasons in two applications for interim orders in which it has considered the arguments that both section 98 of the Act and sections 16. 1 and 32 of the SPPA allow the Board to make interim decisions about any matter, procedural or substantive (The Crown int Right of Ontario Represented by Management Board of Cabinet, [1996] OLRB Rep. Sept./ Oct. 780, and International Brotherhood of Electrical Workers, [1996] OLRB Rep. Sept./Oct. 821). Both of those cases had been argued and decided before the case before this panel came on for hearing, however, the reasons had not issued. Since the arguments made in those cases were similar, if not the same in some areas, as those made in the case before this panel, we have adopted portions of the Board's reasoning in this decision.

23. In The Crown in Right of Ontario the Board reviewed the legislation dealing with interim relief in Bill 40 (section 92.1 of the previous Act), noted the subsequent passage of sections 16.1, 17 and 32 of the SPPA, and the repeal of Bill 40 by Bill 7, which removed section 92.1 from the Act and enacted section 98. As the Board noted in that decision, nowhere in the Act is there a provision that section 98 applies despite anything in the SPPA.

24. In paragraphs 15 to 31 of that decision the Board addressed the question of its jurisdiction under section 98 of the Act. It is unnecessary to reproduce those paragraphs here, however, the majority of this panel is in agreement with the Board's analysis in that case, and with the conclusion reached in The Crown in Right of Ontario. Thus, we agree that, in enacting section 98, the Legislature intended that the Board only issue interim orders dealing with "procedural matters" regarding the conduct of a proceeding and related matters.

25. The Board in The Crown in Right of Ontario also addressed the Board's jurisdiction under the SPPA. At paragraphs 33 to 40 the Board stated:

26. As will be seen, section 16.1 gives all tribunals to which the SPPA applies, an independent authority to make interim decisions and orders; moreover, pursuant to section 32, should there be any conflict between provisions of the SPPA and other provincial statutes, the provisions of the SPPA are to prevail (in this regard, see Thompson and Lambton County Board of Education, 1972 CanLII 1191 (ON HCJ), [1972] 3 OR. 889, upheld on appeal at 1972 CanLII 447 (ON HCJDC), [1973] 1 OR. 766). Section 110(21) of the Act (newly enacted in Bill 7) is an example of such "override":

27. (21) Rules made under subsection (18) apply despite anything in the Statutory Powers Procedure Act.

28. There is no dispute that the provisions of the SPPA apply to the Board, unless explicitly exempted in the Labour Relations Act, 1995, as was done in section 110(21). OPSEU and AMAPCEO thus argue that the effect of any limitation on interim powers contained in section 98 of the Act cannot stand in the face of the generally unlimited jurisdiction to grant interim relief granted to tribunals, such as the Board, in section 16.1 of the SPPA. Section 16.1 overrides or subsumes any limitations on interim powers in section 98. The Legislature must be taken to have been aware of the SPPA at the time it passed Bill 7, submit OPSEU and AMAPCEO, both because of the general presumption to this effect, and because the new section 110(21) it enacted explicitly recognizes the SPPA, and states that certain rules made under section 110 are to apply "despite anything in the Statutory Powers Procedure Act." It must follow, they argue, that the Labour Relations Act, 1995 was passed with an actual awareness of the content and meaning of the SPPA.

29. One of the Crown's arguments in response is that section 16.1 of the SPPA only deals with "procedural" powers, only granting tribunals the authority to make interim orders of a "procedural" or "process" nature. This argument replicates the Crown's argument as to the meaning of the word "procedural" in section 98 of the Act.

30. However, the word "procedural" is not found in section 16.1 of the SPPA, and as with the Labour Relations Act, 1995, there are found elsewhere in the SPPA specific "process" powers. To read the unrestricted "interim" power in section 16.1 as so limited would render the section largely redundant. As well, section 16.1(2) empowers a tribunal to "impose conditions on an interim decision or order". It appears even less likely that the "interim orders" envisaged in section 16.1 were only of a "process" nature, given this explicit power to attach conditions to such orders. This linkage suggests orders of a more significant nature than merely running a hearing. We note also that section 16.1 authorizes the making of interim "decisions", not only "orders", further buttressing the argument that a tribunal can make substantive decisions on an interim basis under section 16.1.

31. On balance, it appears to us that section 16.1 of the SPPA gives jurisdiction to tribunals, including this one, to make decisions or orders on an interim basis that relate to or derive from the tribunal's general or overall jurisdiction. Provided the tribunal acts generally within its jurisdiction, it has a largely unfettered discretion to make interim "decisions or orders" that it has the jurisdiction to make on a final basis, after a hearing on the merits, or that it considers necessary in order to ensure that the statutory rights it deals with are protected until a final decision issues.

Reconciling section 98 of the Act and section 16.1 of the SPPA

38. Given this conclusion, the Board's powers granted under section 16.1 of the SPPA would appear inconsistent with the far more restrictive interim powers granted under section 98 of the Act. The two cannot stand together, and do not merely overlap. The former grants a general jurisdiction to grant interim orders, while the latter grants the authority to make interim orders that deal with the conduct of the proceeding only.

39. Since there is an inconsistency between the two statutory provisions, we must have resort to section 32 of the SPPA, the override provision. While the application of that section does not depend on awareness of its content, it must be taken that the Legislature was fully cognizant of the SPPA and its override provisions, since it explicitly exempted the application of the SPPA in section 110(21) of the Act. The Legislature did not, however, direct that the provisions of section 98 of the Act were to apply despite the SPPA. Under section 32 of that Act, therefore, the provisions of the SPPA (here, section 16.1) prevail over the provisions of the Labour Relations Act, 1995 (section 98), since the two provisions conflict.

40. We conclude in the result that the Board has a general power to grant interim orders, as long as the orders are within or relate to the Board's general jurisdiction.

41. The majority of this panel agrees with the analysis and conclusions outlined above, and is of the view that provided that the Board is acting within its general jurisdiction, it has the power and discretion to make interim decisions or orders. (See also International Brotherhood of Electrical Workers, cited above, wherein the Board reached the same conclusion, although a slightly different analysis was undertaken in that case.)

42. The approach the Board will take in its consideration of applications for interim relief under the SPPA is outlined in The Crown in Right of Ontario as follows:

43. Nevertheless, we consider it appropriate to exercise our jurisdiction in this area in a manner similar to the the [sic] approach previously utilized by the Board. Although our authority now derives from a statute of general application, the general interim power granted to the Board, and other tribunals, through the SPPA, is in our view a plenary authority to make interim orders that are related to the tribunal's constituent statute, and the rights, obligations and duties contained therein.

44. The SPPA does not give a tribunal a general inherent power to make interim orders of any nature and for any purpose. It gives an interim power that is not defined within the SPPA, but which must be exercised in a manner responsive to and with a view towards the purpose, function and powers of the tribunal in question, as defined by the statutory enactment setting up or regulating the tribunal. It is still to the Labour Relations Act (now the new Act) that the Board must look to give it guidance as to how it ought to exercise any interim relief powers that it might have. This remains true where the power itself is granted elsewhere. The defining of and the parameters of that power reside in the Labour Relations Act, 1995.

The Board in International Brotherhood of Electrical Workers, cited above, also observed that section 16.1 of the SPPA is written in the same broad language as section 98.1 of the Bill 40 version of the Act, so that there is no apparent reason for the Board to approach interim applications differently from the way it did previously.

28. The two-pronged test the Board has applied in interim relief applications is:

a) Assuming the applicant's assertions to be true, is there an arguable breach of the Labour Relations Act, 1995 for which there is a remedy which the Board is arguably empowered to give?

b) If so, does the balance of labour relations harm favour the granting of interim relief?

The initial onus is on an applicant for interim relief to satisfy the Board that interim intervention is appropriate, and to do so the applicant must plead an arguable or prima facie case. The applicant must then establish that interim relief is appropriate because it will suffer some substantial labour relations harm unless the Board intervenes pending the disposition of the application on the merits. The Board must also consider the responding party's assertions of harm, to see whether there is any countervailing labour relations harm which makes interim relief inappropriate. A flexible approach should be taken to the two-pronged test so that appropriate labour relations results may be achieved based on the particular circumstances of each case. (See Ombudsman Ontario, [1994] OLRB Rep. July 885 and Westbury Howard Johnson Hotel, [1994] OLRB Rep. Aug. 1166).

29. We agree with the Board's comments in The Crown in Right of Ontario, cited above, that the Board should consider the specific remedy sought, that an interim order is an extraordinary remedy which ought not to be granted without consideration of the appropriateness of granting such relief before a hearing on the merits, and that interim intervention may itself bring negative consequences for the parties' relationship.

30. The first question for the Board to address was whether there was an arguable breach of the Labour Relations Act, 1995 for which there was a remedy which the Board was empowered to give? The union had alleged breaches of the following sections, and claimed that the employer, by its actions, had:

a) imposed a condition in a contract of employment or proposed the imposition of a condition in a contract of employment that sought to restrain the employees in question from exercising rights under the Act, contrary to section 72(b) of the Act;

b) sought by threat of dismissal, or by other kind of threat, to compel the employees in question to refrain from continuing to be or to cease to be members of the trade union or to cease to exercise other rights under the Act, contrary to section 72(c) of the Act;

c) violated the rights of members of the bargaining unit to exercise their rights under the Act in anticipation of, or during, a lawful strike, contrary to section 78(1) of the Act;

d) sought by intimidation or coercion to compel the persons in question to refrain from continuing to be or to cease to be members of the trade union or to refrain from exercising other rights under the Act, contrary to section 76 of the Act; and,

e) bargained in bad faith, contrary to section 17 of the Act.

31. On the basis of our review of the application and submissions, most of the salient portions of the merits of which have been outlined earlier, the union was seeking enforcement of the Act for alleged breaches of specific unfair labour practice provisions of the legislation. On its face the application made out an arguable case for the violations alleged. The union had pleaded facts suggesting that the Region's decision to unilaterally impose its position on the recognition issue with respect to the positions held by the seven employees in question, was a breach of the Region's duty to bargain in good faith at the commencement of a legal strike. The union also argued that the Region had denied the seven employees their right to be represented by the union, to continue to be members of the bargaining unit, and to participate in the legal strike. It was arguable that at least some of the Region's actions may be in breach of the sections of the Act that the union had alleged. As the Board has noted on many occasions, this first prong of the test is relatively easy to meet, and the majority was satisfied that in the circumstances of this application, the union had made out a prima facie case for the relief it was seeking.

32. The second question for the Board to address, if it finds that the applicant has made out an arguable case, is whether the balance of labour relations harm favours the granting of interim relief. Having found that the union had an arguable case, we turned to a consideration of the second question.

33. In this case the parties appeared to have initially reached an agreement, but the union membership failed to ratify that agreement. The parties then appeared to have bargained unsuccessfully just prior to the commencement of a strike. The employees of the bargaining unit had been out on strike for almost two weeks at the time of the interim relief application being heard. It appeared undisputed that at the time of the hearing no bargaining unit employee was crossing the picket line, except for the seven employees who the Region had purportedly transferred out of the bargaining unit. Those seven employees had apparently been considered by the union and the employer as part of the bargaining unit for as long as anyone could remember, even up until the day the strike commenced on September 3, 1996.

34. The union claimed that by unilaterally removing these people from the bargaining unit, on the day the strike commenced, the employer denied those employees the right to engage in a legal strike. That right, it was argued, was a time sensitive one which would expire when the strike was over, so that whatever may transpire in the main application on the merits, if the strike ended in the interim, the particular employees involved may be deprived of their right to strike and to participate in the legal activities of the union during this crucial period. That harm could not later be rectified.

35. The union also argued that it would be harmed by the Region's unilateral decision to reduce the scope of the union's bargaining rights, which it was suggested had the immediate effect of undermining the union's ability to have all of its members engage in strike action. By having the seven employees working during the strike, the Region had pre-empted the strike's effectiveness.

36. According to the union, the employees in question had always been included in the bar­gaining unit, so to grant the union's application would not change what had been the prevailing situation up until the commencement of the strike, and hence, no harm would be caused to the employer. Also, the interim ruling would only be in place until such time as the merits of the section 96 application had been heard and decided.

37. The contents of the declaration of Steve Leavitt, the President of the union Local 1287, filed by the union in support of its application have been outlined above. He indicated that the morale of the striking bargaining unit members on the picket line was being undermined by seeing their erstwhile colleagues and fellow members being transported across the picket line. It was Mr. Leavitt's belief that morale was also being undermined by the Region's unilateral exclusion of employees from the bargaining unit. To the best of Mr. Leavitt's knowledge the seven affected employees were doing bargaining unit work for the employer, thereby further undermining the union's ability to mount a successful strike.

38. In support of the Region's response, Mr. Nicol stated his belief that the seven employees in question wished to be excluded from the bargaining unit, and that if the interim application was granted, those people would be forced to participate in the strike when they had no desire to do so. As has been noted earlier, no declarations in support of or opposed to the interim application were filed on behalf of any of the seven disputed individuals, so that the Board did not have the benefit of their views.

39. The responding party did not plead any harm which would accrue to the Region should the Board find in the union's favour nor did Mr. Nicol's declaration claim any. At the hearing counsel argued that the harm was that seven individuals would be deprived of being managers. It was also argued that the people receiving social assistance from the Region would be affected because there would be seven fewer people to provide them with services. The Region conceded that it could probably manage without the seven, but that its ability to provide services would be compromised. The Region argued that the union could not claim any harm because the seven people involved represented only 1% of the bargaining unit.

40. Having reviewed the documentation and considered all of the submissions on this issue, the majority was of the view that the balance of harm tipped in favour of the union. The majority was concerned that there had been no declaration filed by any of the seven affected employees. However, we are prepared to accept that the union is the bargaining agent for the employees in question and for all of the employees in the bargaining unit. While the seven employees in question only represented one per cent of the total bargaining unit, they represented the supervisory staff of 77 people on the picket line. As such, we were satisfied that it would be harmful to the morale of those people to see their colleagues and supervisors, and until the strike, their fellow union members, crossing the picket line daily. The majority was further of the view that by the employer's seemingly unilateral action, it had affected the solidarity of union members about to engage in a lawful strike. Since there were no other striking employees who were crossing the picket line to attend at work, all of the other employees on strike would also have been negatively affected by the sight of erstwhile union members crossing the picket line and undermining an otherwise solid strike.

41. The majority was also concerned about the harm that was being caused to the union's ability to mount a successful strike by having bargaining unit members doing bargaining unit work. While this is not an entirely unusual event during a strike as some union members may choose to work and not to participate in the strike, it is unusual when these employees had not been given the opportunity to exercise their right to strike or not in the first place. To the extent to which they did have this opportunity, it is argued by the union that it was in the context of a threat to their ultimate job security.

42. On the other hand, the harm claimed by the Region was that the employees in question did not want to strike, and would be forced to join the picket line. As has been noted already, there is not a single declaration from any of the employees in question to this effect. In any event, it was the majority view that this alleged harm was one which accrued to the employees, if to anyone, and not to the Region.

43. The further harm claimed by the Region was that services would not be provided to families in the Niagara Region. Nonetheless, the Region suggested it could probably have managed without the seven individuals.

44. It was in light of these considerations that the majority was of the view that the balance of harm favoured the union as it was suffering tangible consequences as a result of the purportedly illegal action taken by the Region. Given that the strike was in progress, the majority was of the view that irreparable harm may result to the union should interim relief not be granted. The Region had unilaterally, and arguably without legal right, eliminated seven positions from the bargaining unit. To the striking bargaining unit, this may have seemed like a demonstration of the union's ineffectiveness, in that an employer could unilaterally exclude people from exercising their rights under the Act. The majority was also of the view that by returning the union to the position it was in just prior to the strike, the employees in question would be afforded their right to participate in the strike, or not. In the event that those people, or any one of them, wanted to work, as was suggested by the Region, they would be free to make that decision without the pressure of what had been alleged to be an ultimatum.

45. It was for these reasons that the majority granted the union some of the interim orders it was seeking and issued the order it did on September 20, 1996.

46. Board Member Ronson's dissent will follow in due course.