Reference no: EM133407612

Case Study: The Case of Surfaces Road Maintenance Ltd. and the Roadwork Employees' Union

Surfaces is a company that provides road maintenance services in the Okanagan Valley. It has a contract with the Regional District of the Central Okanagan to provide routine road maintenance to roads in the District, and to provide planned, non-routine services throughout the year.

At the start of each calendar year, Surfaces provides the District with a plan for routine and non-routine maintenance throughout the coming year. The District then approves and finances the plan. The plan also includes the schedule and specifications for carrying out the routine and non-routine maintenance, along with performance time frames for completion of the work.

The Union that represents Surfaces' employees is currently on strike. The Board has previously declared some roads that Surfaces maintains to be essential services. Under the essential services order, some bargaining unit members have been scheduled to carry out maintenance work on the roads, or they can be called in to work if management staff cannot perform the maintenance tasks. The essential service order specifies that maintenance levels and work hours will be approximately half of what is provided during regular operations.

Prior to the strike, Surfaces had contracted with another company, Pave-rite, to provide paving services on some of the roads it normally maintains. When the Union learned that Pave-rite would be doing its contract work during the strike, it informed Surfaces that it intended to picket the sites where Pave-rite would be doing its work.

The work that Pave-rite will be doing is work that bargaining unit members do not usually perform. It involves patching stretches of road that are longer than those usually patched by bargaining unit members. The bargaining unit members would not usually be working on the roads at the same time as Pave-rite employees would be, because that would cause too much congestion on the roads. If Pave-rite employees were working on the road, the Surfaces employees would normally be scheduled to do maintenance work elsewhere in the area. While it is possible that some routine maintenance work by Surfaces employees might take place on the roads where Pave-rite employees are working, that work is a very small percentage 2 of the work performed in the entire service area by Surfaces employees during the year.

Surfaces' annual service plan does contain a specification for regular patrolling of all the roads in the service area. Thus, Surfaces may carry out service patrols while the Pave-rite employees are at work.

Surfaces maintains two marshalling yards in the service area, where equipment is kept and where employees report at the start of their shift to receive their work directions. Usually employees spend around five minutes at the marshalling yard and then they are on the roads in the service area for the rest of their shift. The marshalling yards have been designated as essential services facilities under the essential services order.

Surfaces has applied to the Board for a declaration that the Union's planned picketing of the sites where Pave-rite will be performing work is illegal.

The Surfaces Position

Surfaces argues that the sites where the Pave-rite employees are working are not sites or places of work for Surfaces employees. It asks that the Board restrict picketing to the marshalling yards.

Surfaces says that the possibility that bargaining unit members might drive on a road or might do work at a location does not make that location a place where the Union can picket. It admits that routine maintenance work might occur where the Pave-rite employees are working, but it also says that maintenance work might never be done by Surfaces employees at that location.

Surfaces states further that the sites where the Union is planning to picket are public highways.

The Union's Position

The Union argues that every road in the service area is a place where bargaining unit members perform work, and that if work is being performed in a location under an essential services order, the location is clearly a place where bargaining unit members work.

The Union admits that its members may only do a small amount of work at the places where the Pave-rite employees are working. However, it also argues that the work at these sites is an integral part of Surfaces' operations because Surfaces is a road maintenance contractor with performance responsibilities everywhere within the service area.

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The Union says that its pickets will be at the side of the road with signs and that it has no intention of impeding or obstructing traffic. It points out that the roadside is a public space, and that it is also an appropriate site for picketing because it is where the public sees its members working throughout the year.

Questions:

What should be the legal issues and test for this case?

What will be the decision of the Labour relations board based on the legal test?