Manager performed regular duties but non-unionized employees did strikers’ work: Board

Manager only did his normal job duties but road workers fixed more than their normal roads during strike

A British Columbia employer didn’t breach the Labour Relations Code when a manager worked during a strike, but when non-union workers performed work normally done by striking workers, it was a different story, according to the B.C. Labour Relations Board.

Lakes District Management Ltd. (LDM) of Burns Lake, B.C., is a highway maintenance company contracted by the province to provide road maintenance. On June 30, 2007, its unionized workers went on strike. An essential services order was put in place that included a list of personnel who were excluded from the bargaining unit.

Greg Finch, the accountant and technology manager, wasn’t included on the list but as a manager wasn’t part of the union. Finch performed inventory work at three maintenance yards and programmed computers in highway maintenance equipment. The union claimed because he wasn’t on the list of excluded workers, he shouldn’t be doing any work associated with the jobs of striking workers. LDM said Finch wasn’t part of the union and should be able to do his regular work during the strike.

LDM also had a contract with Canadian Forest Products (Canfor) to maintain Canfor’s forestry roads. Canfor workers are not unionized and they shared one of the shops with LDM’s unionized workers. During the strike, some of these workers performed dust control work on provincial roads, which the union argued was against the code. LDM claimed these workers were doing the same work they had always done and were allowed to continue to do so during the strike.

The board found although Finch wasn’t on the list, it was clear he was an excluded employee and entitled to continue working at the maintenance yards.

“Whether or not Finch’s name is added (to the list), I find LDM has not breached (the code) by having him perform work that, but for the strike, would have been performed by members of the bargaining unit,” the board said. “Excluded personnel may perform bargaining unit work at their ordinary place of employment during a strike.”

However, the board found using Canfor workers on the provincial roads did violate the code. While the work they did was part of their normal duties, it found they had never done it on the provincial roads and only the Canfor roads.

“Non-bargaining unit workers can continue to perform shared work during a strike or lockout only if it is work they would have done if there had not been a strike or lockout,” the board said. See Lakes District Maintenance Ltd. v. B.C.G.E.U., 2007 CarswellBC 2613 (B.C. L.R.B.).

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