Workers Hired After a Strike Begins Can't Vote in a Union Decertification Vote

A long strike by United Steelworkers members at Crown Holdings beer can manufacturer has been in the news lately, and the Ontario government has now appointed an expert arbitrator to try and broker a deal there.  Receiving less media attention, probably because it doesn’t involve a sexy product like beer cans, is a strike nearing the 2 year mark at a company called WHL Management Limited, also in Toronto.  The strike began in August 2013.  The union is the UFCW.
Last week, the OLRB released an interesting decision about the rights of workers hired during a strike to participate in an application to terminate a union’s bargaining rights.
Here is the decision.
Facts
Common to most long strikes is the employer’s decision and legal ability to hire

replacement workers to do the work of strikers.  This allows an employer to withstand a long strike, since they can just continue to operate even though its employees are standing out front on a picket line for months or years.   WHL has done just that.  After the strike began, it hired 103 employees and retained an additional 66 workers from a temp agency in order to perform work previously done by the striking workers.
In December 2014, some employees filed an application to terminate the union’s bargaining rights for the WHL employees.  A ‘decertification’ vote was held, and 200 ballots were casted.  From the employees who were employed and in the bargaining unit when the strike began, 54 ballots were cast in favour of keeping the UFCW and 31 were cast in favour of terminating the UFCW, a clear win for the UFCW.
Issue
Everyone agreed that the 66 temp workers were not entitled to vote in the termination election. That law is well settled.  However, the lawyers for the employer and the employees trying to get rid of the UFCW argued that the 103 employees it hired after the strike began should also be permitted to vote.  They argued that these workers were hired because the employer was expanding and once hired, they technically fall within the striking bargaining unit and therefore have a right to participate in the ballot.
Decision
The OLRB rejected that argument, and dismissed the application to terminate the UFCW’s bargaining rights based on the results of the vote.
The legal dispute centered around the meaning of the language in Sections 63(2) and 63(14) of the Ontario Labour Relations Act.  Both sections describe the issue at stake in an application to termiante a union’s bargaining rights is whether the “employees in the bargaining unit” “no longer wish to be represented by the union“.
According to the Board, that language makes clear that the application is a test of the union’s worth to employees who have had experience being represented by the union. People hired after a strike has begun, and therefore who have no experience working under a collective agreement bargained by the union or being represented by the union at all, have nothing to say about whether the union has or has not done a decent job of representing employees.
Moreover, these employees have interests that will often be quite different–the opposite even–of the employees who are on strike.  The newly hired employees have an interest in the strike continuing, since their jobs may depend on the strikers not returning to work.
Interestingly, the OLRB also noted the recent SCC decision recognizing a Constitutional right to strike:

68. The importance of employees to launch a meaningful strike, as articulated by Abella J. [in Saskatchewan Federation], causes this Panel to heavily favour a result that maintains the employees’ collective ability to choose whether it wishes for the trade union to continue to represent its interests or not during the course of a strike. To hand over that decision – or the vote on that decision – to a group of employees who have never been represented by the trade union and who’s interests are not congruent with the employees who were in the bargaining unit at the commencement of the strike, would fundamentally reduce the effectiveness of the collective action to engage in the strike.

So here is an example of the Constitutional right to strike influencing the interpretation of laws governing an application to terminate a union’s bargaining rights.  Intriguing.
Issues for Discussion
1.    Do you agree with the OLRB’s reasoning on why employees hired during a strike should not be permitted to vote in a decertification election?
2.    Can you think of a counter argument why those employees should be able to vote?
3.    What are arguments for and against allowing employers to hire new workers during a strike or lockout?