The Sports Club is a private club with facilities for seven different sports, and also has a general fitness training area. The club’s premises include a lounge and a restaurant, and a space that is leased to a child care and early childhood education program during the school year. The General Workers Union is the certified bargaining agent for the club’s “physical plant” employees, who service and maintain the various parts of the facility, including the leased space. The union also represents the cleaners who work in the lounge and the restaurant. There are 13 full-time and six part-time workers in the bargaining unit. The club’s administrative staff, restaurant employees, and lounge employees are not unionized. The most recent collective agreement between the club and the union expired in the middle of last year. At the start of this year, the club served the union with notice to commence collective bargaining for a new contract. The parties met for five bargaining sessions between January and March. In early April, the parties met with a mediator

appointed by the labour relations board. In mid-April, the club gave the union a final contract offer, and asked the board to order a final offer vote. A week later, the club gave the union a 72-hour lockout notice. Four days after that, the final offer vote was held, and a majority of the 13 employees participating in the vote rejected the offer. A week later, on May 3, the club locked out the union members. 

Since then, the union has maintained a picket line at the club.

The union’s lawyer told the board that on May 9, the employer used an outside contractor, Green Landscaper, to mow and trim the lawn in and around the club. This work was usually done by union members. The union’s lawyer also told the board that on May 12, union members on the picket line observed Gary Guthrie, who the union alleges is a replacement worker, driving the club’s Zamboni machine. The union’s lawyer said that Guthrie was a former employee of the club and was rehired after the notice to commence collective bargaining was issued. The union submitted photographs to the board that showed Guthrie driving the Zamboni on the club’s premises after the lockout had started.

The employer’s lawyer told the board that the employer did not deny that it used an outside contractor to mow and trim the lawn. However, the employer’s lawyer claimed that the work was actually done by Magnolia Maintenance, a company affiliated with Green Landscaper.

The employer’s lawyer also told the board that the club’s management employees have performed all of the rest of the grounds maintenance work since the lockout began.

The employer’s lawyer submitted invoices to the board indicating three instances when outside contractors had been used for grounds maintenance work, and told the board that the union had not fi led grievances over the use of these contractors.

The union and the employer agreed that Guthrie had resigned his permanent position with the club during the term of the last collective agreement. However, the employer’s lawyer claimed that Guthrie had occasionally been rehired on a temporary basis since then to perform various tasks, and was an active employee at the time the notice to commence bargaining was issued. The employer’s lawyer stated that Guthrie chose to cross the picket line to do the work involving the Zamboni, and thus could not be considered a replacement worker.

The union pointed out that Guthrie’s name did not appear on the list of employees that the employer had provided to the board with its request for a fi nal offer vote.

The Employer’s Position 

The employer claimed that its invoices, as provided to the board, showed that outside contractors were regularly used for mowing and weeding the club’s grounds.

The employer provided the board with spreadsheets that listed all employees’ hours of work for the past three years. The spreadsheets showed that Guthrie had worked for three periods in the previous year, with the first period including 24 hours of work, the second including 37 hours of work, and the third including 17 hours of work. The employer also provided a document from its payroll system that listed Guthrie as an “active” employee as of the end of the previous year.

The Union’s Position 

The union argued that while the invoices provided to the board for work done by outside contractors showed that the contractors did grounds maintenance work, that work is not specified on the invoices as including mowing or weeding. The union also argued that outside contractors had only been used in the past for grounds maintenance work if bargaining unit members were sick or absent.

The union argued that the employer had not provided any timecards or other evidence to verify that Guthrie had worked the hours listed on the spreadsheet.

The union argued that the employer had also not provided any explanation of why Guthrie was listed as an “active” employee in the club’s payroll system if he had only worked on three short-term contracts in the previous year.

The union also stated that if Guthrie had been an active employee at the time of the final offer vote, the employer would have ensured that his name was on the list of employees submitted by the employer to the labour relations board before the vote.

The union asked the board to order the employer to pay financial damages for its action, and to appoint an industrial relations officer to investigate the employer’s operations.