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Court tightens strike replacement law
July 11, 2000

T he BC Supreme Court has overturned important decisions and policy of the BC Labour Relations Board regarding the prohibition against strike replacements. The result may significantly reduce the number of excluded staff that an employer is permitted to use to perform bargaining unit work during a strike. The issue relates to excluded staff who work at more than one location.

Section 68 provides in part that:

“During a lockout or strike authorized by this Code an employer must not use the services of a person, whethere paid or not, … who ordinarily works at another of the employer’s places of operations, … to perform … the work of an employee in the bargaining unit that is on strike or locked out …”

In BC Automobile Association, BCLRB No. B94/99, the striking union had ten of twenty-two service centres in its bargaining unit. It alleged that three Regional Sales Managers were prohibited from performing bargaining unit work. The union asserted that they all ordinarily worked at another of the employer’s places of operation.

The regional sales managers had office facilities as the head office, but none at the service centres. However, each attempted to visit each service centre under his or her authority at least once per month, and in some circumstances several times per month.

The union asserted that a person normally will have only one place at which he or she ordinarily works, and may not perform bargaining unit work only at that location even if he or she ordinarily works at other locations as well. The Board described this as a “literal reading” of section 68. It reviewed its jurisprudence and observed that it supported the approach that persons who ordinarily work at more than one location may be entitled to perform bargaining unit work at more than one location during a strike. It adopted the test in the Board’s appeal decision in BC Hydro (Dunleavy), BCLRB No. B453/94 and looked at whether the sales managers spent a significant period of their time working at the struck service centres. In the result, the Board found that the employer had not violated section 68, and was permitted to have them work at the service centres under their authority.

On appeal, BCLRB No. B277/99, a panel consisting of then Board Chair Keith Oleksiuk and two vice chairs stated that in Dunleavy, the Board had interpreted the relevant part of section 68 in a way that was consistent with the intent of the section as a whole and the general purposes of the Code. The appeal panel observed that the original decision allows as replacement workers only those persons with “an established work attachment” to the struck location, and confirmed the decision.

The union applied to the court for judicial review. The court ruled that the decision of the Labour Relations Board was patently unreasonable because it applied an entirely different test than that formulated by the legislature in section 68:

“Section 68(1)(b) required them to look at what the three Regional Sales Managers did, if anything, at other places of operations of BCAA. Instead, both decisions look at the struck places of operations. This is made unmistakable in the Reconsideration Decision by the following words:

‘The result reflects the pre-strike/lockout makeup of the work place, by allowing as replacement workers only those persons with an established work attachment to the struck or locked out place of operation.’

This amounts to the substitution of an entirely different test than that formulated by the Legislature in s. 68. To say a person works at a struck location is not an alternative way of saying he or she does not work at another location. The first is not necessarily the obverse of the second.” …

“Had the Board in either decision applied its mind to the test formulated by the Legislature, it would have had to decide whether these Regional Sales Managers ordinarily worked at another of the employer’s places of operations. The unavoidable conclusion, in my view, is that they did, on either of the possible interpretations I outlined earlier in these Reasons:

“1. They worked most of the time at places of operations other than the struck locations.”

“2. They worked regularly at another of the employer’s places of operations, even though the time spent at any other location might be minimal.”

“The Board did not interpret the legislation but invented a different test and applied that test. Had the Board used the test found in the Code, it would have to have found that the three employees were prohibited from doing replacement work.”

The court quashed the Board’s original and appeal decisions.

The court decision leaves the possibility that an excluded person who ordinarily works at more than one location will not be permitted to work at any of them, or only at one of them.