Union of Operating Engineers, 2010 ONSC 723

DIVISIONAL COURT FILE NO.: 332-09

DATE: 20100202

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Rainbow Concrete Industries Ltd., Applicant

AND:

International Union of Operating Engineers, Local 793 and Ontario Labour Relations Board, Respondents

BEFORE: McCombs, Lederman and Molloy JJ.

COUNSEL: Michael G. Sherrard and Katherine E. Ford, for the Applicant

Sean McFarling, and Virginia Nelder, for the Respondent, International Union of Operating Engineers, Local 793

Voy Stelmaszynski, for the the Ontario Labour Relations Board

HEARD: January 28, 2010

ENDORSEMENT

THE COURT:

NATURE OF PROCEEDING

[1] The applicant, Rainbow Concrete Industries Inc. ("Rainbow"), seeks judicial review of two decisions of the Ontario Labour Relations Board ("OLRB" or "Board") dated June 29, 2006 and March 30, 2009 to exclude certain employees from the bargaining unit:

a) The 2006 decision held that 11 drivers were not in the bargaining unit because they did not have the greatest attachment to the Sudbury location;

b) The 2009 decision held that 15 employees in question fell within the office and clerical exclusion from the bargaining unit.

[2] As a result, the ballots of these individuals were not counted. Local 793 won the representation vote and certification was issued.

[3] The applicant also seeks judicial review of the Board's decisions denying its requests for reconsideration.

BACKGROUND

[4] Rainbow is a producer and supplier of concrete products with its head office at the Sudbury Location. On April 12, 2006, Local 793 filed a certification application for a bargaining unit of all Rainbow employees working in, at, and out of the Sudbury Location except office and clerical staff, sales staff, students, non-working forepersons, and persons above the rank of non-working forepersons.

[5] On April 13, 2006, Rainbow filed a response in which it agreed with the description of the proposed unit but disagreed with Local 793's estimate of the number of individuals in the unit. It challenged the status of two groups of employees that the union asserted were not in the unit:

a) 11 drivers who the union said were not working "in, at, and out of" the Sudbury Location;

b) 17 employees who the union said fell within the office and clerical exclusion or were otherwise excluded from the unit.

[6] Meanwhile, the Board ordered a representation vote and directed that the ballots be sealed pending determination of the status disputes.

The 2006 Drivers Decision

[7] In its decision dated June 29, 2006, the Board applied the "greatest attachment" test to find that the 11 drivers were not working in, at, or out of the Sudbury location. Accordingly, they were not employees within the unit and were not eligible to vote.

[8] On July 24, 2006, Rainbow requested reconsideration of this decision on the basis that, inter alia, the Board had failed to appreciate the centralized nature of Rainbow's operations, had misapplied the greatest attachment test and had unreasonably restricted the concept of "in, at and out of". On August 28, 2006, the Board denied the request.

The 2009 Disputed Individuals Decision

[9] In its March 20, 2009 decision, the Board found that, of the 17 employees at issue, 15 were not in the bargaining unit and two were in the unit. Based on these findings and those in the 2006 decision, the Board determined that the unit consisted of 74 individuals. The Board had previously counted the ballots for 72 of these individuals; 40 of them were marked in favour of Local 793. This meant that Local 793 had a majority of the votes for certification, which was granted in the same decision.

[10] Rainbow filed a request for reconsideration on April 29, 2009. The Board denied the request in a decision dated May 15. On June 10, the Board made a minor amendment to that decision.

STANDARD OF REVIEW

[11] The parties are in agreement that the impugned Board decisions are reviewable on a standard of reasonableness. We agree. Existing jurisprudence has held that the standard of reasonableness applies to Board decisions on issues related to union certification. (See Maystar General Contractors Inc., v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265; Schuit Plastering & Stucco Inc v. Ontario (Labour Relations Board, [2009] O.J. No.2082 (Div. Ct.)).

[12] The question becomes whether the Board's decisions fall within a range of possible, acceptable outcomes which are defensible with respect to the facts and law.

RAINBOW'S POSITION

[13] Rainbow submits that the Board's 2006 decision that the drivers were not working "in, at, or out of" the Sudbury Location was unreasonable. It argues that although the Board appropriately used the "greatest attachment" test, it failed to consider all relevant factors in determining whether the drivers in fact had the "greatest attachment" to the Sudbury location.

[14] In particular, Rainbow argued that the Board only considered where the individual normally works, and failed to take into account other relevant factors such as the fact that the scheduling and dispatch functions were centrally administered from the Sudbury location.

[15] Thus, Rainbow submits that the Board decision was unreasonable because the Board ignored the evidence that demonstrated an integrated, interdependent and functionally coherent workplace that was operated centrally out of the Sudbury location.

[16] Rainbow also submits that the Board's 2009 decision that the disputed individuals fit within the office and clerical exception was unreasonable. It argues:

a) Whether an individual's duties and responsibilities are integral to and supported the work done by the bargaining unit is a critical factor in determining whether he/she fits within the office and clerical exception;

b) The Board failed to appreciate or consider Rainbow's centralized, interdependent and coherent structure. Functional interdependence militates in favour of including the disputed individuals in the bargaining unit;

c) Most of the duties and responsibilities of the disputed individuals were not clerical or administrative in nature. They supported the production component of Rainbow's business and the work done by the bargaining unit.

[17] Rainbow also submitted in its factum that it was unreasonable for the Board to draw an adverse inference from Rainbow's failure to call as witnesses Lucien Giroux and Andy Gallant. However, it did not raise this issue in argument before us.

ANALYSIS

The 2006 Decision

[18] With respect to the Board's 2006 decision that the drivers were not employed "in, at or out of" the Sudbury location, the Board applied its long established test, namely: to which location do the employees have the greatest attachment?

[19] The greatest attachment test is used where an employer has multiple locations with employees working at some or all of them.

[20] The Board found on the evidence that the drivers did not begin or end their day at the Sudbury location. The drivers certainly had no physical attachment to the Sudbury location.

[21] In this case, Rainbow agreed to a bargaining unit that was limited in geographical scope ie. employees essentially based at the Sudbury location. Accordingly, factors of integration and interdependence are not relevant. Those may be relevant considerations if there was an issue of what constitutes the appropriate bargaining unit and Rainbow was arguing that employees in remote locations should be included. But here, the parties agreed to the geographical limitation of employed "in, at, and out of" the Sudbury location. Rainbow should not now be allowed to resile from the bargaining unit description it agreed to.

[22] In the circumstances, it was reasonable for the Board to emphasize the factor of how much time was physically spent in each location.

[23] In this case, the Board applied its jurisprudential test of greatest attachment and took into account the factors relevant to the circumstances. Its decision to exclude the drivers falls within a range of acceptable outcomes and is entitled to deference. It was therefore reasonable.

The 2009 Decision

[24] With respect to the Board's 2009 decision that the disputed individuals fit within the office and clerical exception, the Board examined the functions of each disputed employee and determined that they were administrative in nature.

[25] It recognized that, to some degree, they supported the production functions. However, the Board found that their interactions with production employees were limited to providing administrative support.

[26] The Board found that the true character of their work was more like office and clerical employees than production employees. In reaching this conclusion the Board pointed to factors such as the fact that the disputed individuals primarily interacted with customers, suppliers, consultants and other administrative employees; they generally worked out of the separate administrative building rather than in the production area; the majority of their work was in the nature of paperwork.

[27] On the analysis of the evidence of the employees' duties and responsibilities, the Board concluded that the work of these employees was administrative in nature and thus fell within the office and clerical exception. Given its experience in assessing such matters the Board's decision is entitled to deference and was reasonable.

CONCLUSION

[28] For these reasons, we are of the view that the Board's decisions were reasonable. Accordingly, the application for judicial review is dismissed.

[29] Counsel agreed that costs of the application be fixed at $5,000. Having been successful, the respondent union will therefore have its costs of $5,000 payable by the applicant. The Board sought no costs.

McCombs J.

Lederman J.

Molloy J.

Released: February 2, 2010