CITATION: Nadalin Electric v. International Brotherhood v. Ontario Labour Relations Board, 2014 ONSC 1324
COURT FILE NO.: DC-13-0498JRDC
DATE: 2014-02-28
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO, WHITAKER, ELLIES J.J.
B E T W E E N:
NADALIN ELECTRIC COMPANY (ONTARIO) INC.,
Applicant
Stephen A. McArthur, Christopher E. Bergs, for the Applicant,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 105
Ronald Lebi, for the International Brotherhood of Electrical Workers Local 105
AND
THE ONTARIO LABOUR RELATIONS BOARD
Respondents
Voy Stelmaszynski, for the Ontario Labour Relations Board
HEARD: February 25, 2014
ENDORSEMENT
[1] Nadalin Electric Company (Ontario) Inc. (“Nadalin”) moves to quash a decision of the Ontario Labour Relations Board (the “Board”) dated July 16, 2013, declaring that Sigmund Gigler and Iain Gould were included in a bargaining unit for the purposes of an Application for Certification, and that the International Brotherhood of Electrical Workers Local 105 (“Local 105”) was the exclusive bargaining agent for the bargaining unit.
[2] The applicant also moves to quash the Board’s decision of August 20, 2013, ordering the payment of money by the applicant into the trust account of the solicitors for Local 105.
[3] Finally, the applicant moves to quash the Board’s decision of September 17, 2013, refusing to reconsider its written decision of July 16, 2013.
[4] Under the Labour Relations Act, 1995, S.O. 1995, c. 1 (the “Act”), a trade union could be certified as the exclusive bargaining agent for a bargaining unit of Nadalin employees if a majority of those employees indicate that they want the trade union to represent them. In the construction industry, the composition of a bargaining unit is determined by ascertaining the employees in the bargaining unit at work on the application date.
[5] Local 105 filed its certification application on May 21, 2013. In that application it sought the right to represent a bargaining unit of electricians, journeymen, apprentices and other Nadalin employees. There is no dispute that Nadalin is an employer in the construction industry.
[6] In its response to the certification application Nadalin stated that there were 20 employees in the bargaining unit on the filing date. Nadalin identified the 20 individuals. A dispute arose about the status of two individuals not named by Nadalin: Sigmund Gigler and Iain Gould. These two individuals were performing electrical work on the application date. Nadalin maintained that the electrical work they were performing was maintenance or industrial type work, not construction industry work. Local 105 claimed that these two employees were performing construction industry work and therefore should have been included on the employer’s list of bargaining unit employees.
[7] There was also an issue concerning the status of two other employees but that dispute is not helpful in resolving this judicial review application.
[8] The Board conducted a hearing to determine the status of Sigmund Gilder and Iain Gould. At issue was whether either or both employees had performed some construction industry work on the application date. If they had performed some construction industry work on the application date, then they would be added to the list of bargaining unit employees.
[9] The Board determined that both employees had performed some construction industry work on the application date. Once this was determined it was obvious that Local 105 enjoyed the support of more than 55% of the bargaining unit employees, triggering the result that the Board certified Local 105 as the their exclusive bargaining agent.
[10] The applicant unsuccessfully asked the Board to reconsider its decision.
[11] The parties agree that the appropriate standard of review for determining whether the Board erred in deciding the employees had performed some construction industry work on the application date is reasonableness.
The work performed by the disputed employees on the application date
[12] Sigmund Gigler and Iain Gould performed two kinds of work on May 21, 2013:
Diagnosing the reasons why a pump at a Halton Hills Pumping Station was not working, tagging the pump wires to be disconnected and locking out the power source to the pump.
Replacing dead batteries in an emergency light, replacing a broken plastic cover on a thermostat and replacing a thermal sensor on a heater at the Acton Wastewater Treatment Plant.
The pump at the Halton Hills Pumping Station
[13] Nadalin maintained before the Board that the repair of the pump was industrial type work because the repairs were to be performed by a third party off-site. Nadalin pointed out that the only persons permitted to repair the pump were those licensed by the pump’s manufacturer. Nadalin maintained that, because the repair work to the pump was to be carried out by a third party off-site, it was industrial type work and not construction industry work.
[14] The Board member decided that tagging the pump wires and locking out the power source to the pump, which was done by Gigler and Gould at the Pumping Station, was repair work undertaken at the construction “site.” The Board member reasoned that preparation for the pump’s removal carried out at the construction site was a part of the overall process for carrying out the repair work, even though no actual repair to the pump occurred on site. Because this work took place on the construction site and was an element of the repair work, the Board member determined it was construction industry work.
[15] In our view, this aspect of the Board’s decision is unreasonable. The Act’s definition of the construction industry and, by process of deduction construction industry work, states that the term construction industry means “the businesses that are engaged in … repairing … other works at the site”: s. 1(1). If disconnecting the pump so that it can be repaired off-site is included in the notion of “repairing” then the phrase “at the site” becomes redundant. No equipment from a construction site can be repaired off-site unless it is first removed from the construction site and taken to the place where it is going to be repaired. Obviously the pump had to be disconnected at the Pumping Station before it could be removed for repair off-site. The member’s interpretation effectively rewrites the construction industry definition so that the term “at the site” only applies to the initial location of any type of equipment repaired, regardless of where and by whom the substantive repair work is actually done. Interpreting the words of the definition according to the modern rule of statutory interpretation, we conclude that the Board’s interpretation negates the plain meaning of the definition and its purpose of regulating the scope of the Act in relation to construction work, and is therefore unreasonable.
The dead batteries, the broken plastic thermostat cover and the thermal sensor
[16] At paragraph 11 of the ruling, the Board member states that replacing the thermostat cover, replacing the batteries and checking the thermal sensor were part of the preventative maintenance work which Nadalin was employed to do.
[17] Replacement of the batteries and thermostat cover were not found to be repair work.
[18] The thermal sensor was not working with the result that the heater to which it was attached ran continuously. The member found that a heater that is running continuously because its heat sensor is not working is not operating properly. The member found that in order for the heater to function, its heat sensor had to be replaced. The member found that the heat sensor was replaced on the application date by Sigmund Gilder and Iain Gould. The member found that their work in this regard took the form of “repairing … other works at the site.”
[19] Counsel for Nadalin argued before us that the member’s decision was inconsistent because the member determined that replacing the batteries powering a light bulb constituted maintenance while replacing a heat sensor regulating the operation of a heater constituted a repair. Implicit in the applicant’s argument is the assumption that replacing a malfunctioning thermal sensor is the same work functionally as replacing a dead battery.
[20] Sigmund Gilder and Iain Gould testified at the hearing. They gave evidence describing the work they performed on the application date. After hearing their evidence, the member determined that the work associated with the replacement of the thermal sensor constituted a repair.
[21] Nadalin’s argument on this point asks us to reweigh the evidence that was before the Board and substitute an opposite conclusion regarding whether replacement of the thermostat is repair work. This was a fact-driven conclusion by a Board with recognized expertise in the field of labour relations and as such it is owed deference. The Board applied a statutory term – “repairing” – to primary facts found by the Board based on the evidence before it – the nature of the work done by Gilder and Gould. The Board member’s decision on this question of mixed fact and law fell squarely within the range of possible, acceptable outcomes defensible in respect of the facts and law, and therefore is reasonable: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
Conclusion
[22] The member’s decision that replacing the heat sensor was construction industry work was based on his interpretation of the evidence given by the persons who actually did the work. We cannot say that his decision in this regard was unreasonable. Accordingly we cannot set aside his decision that Sigmund Gilder and Iain Gould engaged in some construction work on the application date and therefore were employees in the bargaining unit on that date.
[23] Accordingly, the Board’s decision certifying the respondent Union as the exclusive bargaining agent for that bargaining unit is also upheld.
[24] This application for judicial review is dismissed with costs. If the parties cannot agree on costs, brief submissions not exceeding three pages may be made within seven days of the release of this decision.
MARROCCO J.
WHITAKER J.
ELLIES J.
Date: February 28, 2014
CITATION: Nadalin Electric v. International Brotherhood v. Ontario Labour Relations Board, 2014 ONSC 1324
COURT FILE NO.: DC-13-0498JRDC
DATE: 2014-02-28
NADALIN ELECTRIC COMPANY (ONTARIO) INC.,
Applicant
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 105
AND
THE ONTARIO LABOUR RELATIONS BOARD
Respondents
ENDORSEMENT
Released: February 28, 2014