Sentry Electrical (Canada) ULC v. International Brotherhood of Electrical Workers, Local 120 and Ontario Labour Relations Board, 2015 ONSC 6506

CITATION: Sentry Electrical (Canada) ULC v. International Brotherhood of Electrical Workers, Local 120 and Ontario Labour Relations Board, 2015 ONSC 6506

DIVISIONAL COURT FILE NO.: 41/15
DATE: 20151020

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LEITCH, SANDERSON AND SACHS JJ.

BETWEEN:

SENTRY ELECTRICAL (CANADA) ULC

Applicant

– and –

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 120 and ONTARIO LABOUR RELATIONS BOARD

Respondents

Greg F. McGinnis, for the Applicant

Ronald N. Lebi, for the Respondent, IBEW

Leonard P. Marvy, for the Respondent, Ontario Labour Relations Board

HEARD at Toronto: October 20, 2015

LEITCH J. (ORALLY)

1This is an application by Sentry Electrical (Canada) ULC (“Sentry”) for judicial review from a number of decisions of the Ontario Labour Relations Board (“the Board”) that culminated in its decision dated December 18, 2014, which certified the respondent, International Brotherhood of Electrical Workers, Local 120 (“the Union”), as the exclusive bargaining agent for electricians and related workers employed by Sentry.

2There is no issue that the standard of review on this application is reasonableness.

3The first issue raised by Sentry is the question whether it is reasonable to determine the bargaining unit based on the employees performing the work on the day the certification application is filed when the application is filed on a Saturday.

4Sentry acknowledged that the Board correctly applied its rules.

5In regard to the filing and delivery procedures for applications, the Board’s Rules of Procedure provide in s.24.1 that applications and all other material required to be delivered under the Rules must be delivered in particular ways, one of which – namely courier service was utilized by the Union.

6Pursuant to s.24.2, if an application is sent by Priority Courier, the date of filing is the date on which the application is sent, which in this case is a Saturday.

7Sentry’s position is that it is an unreasonable application of the Act to allow a Saturday, Sunday or holiday to be the date of filing of an application because as a matter of common sense and social norms, the employees employed on a Saturday, Sunday or holiday are less representative of the working unit than employees working the other days of the week.

8According to Sentry, this is important because the purpose of certification, a core function of the Board, is to ensure that a union has the support of the majority of employees in the workplace.

9Sentry asserted that the bright line or snapshot approach resulting from the Board’s rule 24.2 is inconsistent with the purposes of the Act.

10As a result, Sentry asks this Court to find that the May 28, 2014 decision of the Board dismissing what I will refer to as its filing date objection was unreasonable.

11Sentry’s filing date objection was dismissed by the Board because the Board found that Sentry had not identified any manner in which the rule is inconsistent with the purposes of the Act. (Decision, May 28 at paras. 8 and 11).

12The Board noted at para. 8 that Sentry’s objections to what they referred to as the bright line test have been dealt with and rejected by the Board on numerous occasions and that although imperfect the test has stood for decades as the best alternative for determining employee status in construction industry applications as it balances representativeness, certainty and efficiency.

13In Dalron Construction Limited, one of the leading cases relied on by the Board on this issue, the bright line test was considered in the context of an application filed on a Saturday.

14In this regard, it is important to note that this bright line test is only applicable if employees are working on a Saturday, Sunday or holiday.

15In this case of the 27 employees who were hired and were customarily working for Sentry as wind tower technicians, as outlined in its objection at Tab 9 of the Record of Proceedings, 11 were working on the Saturday in question.

16Sentry has not provided the Court with any basis on which the Court can conclude that the Board’s rule, which is the basis of the bright line test or snapshot approach, is unreasonable when applied on a Saturday, Sunday or holiday.

17A submission that relies on counsel’s assertion of common sense and social norms is insufficient for this Court to make a finding that the rules of the Board acting squarely within its well acknowledged expertise are unreasonable,

18Sentry also asked this Court to quash the decision of the Board that the statements of a Union organizer, Mr. Perrie, to one of Sentry’s employees were not a violation of s.76 of the Act which prohibits seeking union membership through intimidation and coercion.

19Section 128.1(8) and (9) of the Act provides that where the trade union or person acting on behalf of the trade union contravenes the Act, the Board may dismiss the application for certification if no other remedy, including a representation vote would be sufficient to counter the effects of the contravention.

20In its decision dated November 28, 2014. The Board concluded at para. 34 that Mr. Perrie’s conduct did not constitute a violation of s. 76 of the Act.

21However, notwithstanding that finding, the Board found at para. 35 that “from an objective perspective”, Mr. Perrie’s comments were “of a nature” that “undermines the reliability of the membership evidence”.

22The Board ultimately concluded at paras. 36 and 37 that the Union’s conduct did not warrant a dismissal of the application, however the Board was not prepared to rely on the membership evidence as filed and determined that it was appropriate for the Board to exercise its discretion under s. 128.1(13) and require a vote to confirm the workers’ wishes.

23Sentry asserts that it was unreasonable to find the statements did not constitute a violation of s.76 and it was unreasonable to order a representation vote as a remedy for the statements.

24In relation to the latter point, we agree with the submission of the Union that having stated in correspondence to the Board at Tab 20 of the Record of Proceedings that a representation vote was the relief it sought as an alternative to the dismissal of the application, Sentry cannot now assert that the granting of this alternative relief by the Board was unreasonable.

25In any event, while the Union did not quarrel with Sentry’s position that the Union occupies a unique position in the construction industry and this context must be considered in assessing Mr. Perrie’s conduct, this does not mean that the only reasonable response to the conduct was to dismiss the Union’s application.

26The conduct described in the cases relied on by Sentry was very different from the actions Mr. Perrie was found to have engaged in.

27We further note that when the Board on December 12, 2014 reconsidered its decision on this issue at the request of Sentry, the Board at para. 4 reiterated its assessment that Mr. Perrie’s conduct did not violate s.76.

28Further the Board stated at para. 5, that even had the Board concluded that the Union had violated s. 76 of the Act, that conclusion would not have altered the Board’s findings concerning what the Union had actually done, the Board’s finding at paragraph 36 that the nature of the Union’s conduct would not warrant dismissal of the application would stand, and the Board would not, therefore, alter the remedy granted in this case.

29I turn now to the issue respecting the form of question posed on the ballot.

30In the voting on December 8, 2014, the following question was asked:

In your employment relations with your Employer, do you wish to be represented by the Union?

31Sentry submits that the generic ballot question was too ambiguous as six of the ten voters were no longer employed by Sentry on the day of the vote. Sentry submits that the plain meaning of the question would refer, in a reasonable person’s mind, to current employees only, so Sentry’s former employees who attended the vote may have thought that they were voting for representation with their current employer instead.

32The Board dealt with this issue pursuant to a reconsideration requested by Sentry. In its decision dated December 18, 2014, the Board concluded at para. 7 as follows:

When the Board conducts a representation vote, it does not only provide employees with a generic ballot, such that there could be some ambiguity as to who the “employer” is for the purpose of a representation vote. The Board also posts a “Vote Screen Notice”. This notice clearly identifies the parties to the application, and in particular in this case the Notice states THE EMPLOYER(S) IS/ARE: Sentry Electrical (Canada) ULC.” The question on the ballot is phrased in the present tense since the purpose is to ascertain the wishes of the employees at the moment they cast their ballots. The Board does not agree that in these circumstances, the ballot would give rise to any misunderstanding on the part of the voters as to the identity of the employer that is the subject of the application, or the effect of casting a ballot for or against the union vis-a-vis that employer.

33We see nothing unreasonable in this conclusion.

34The last issue raised by Sentry relates to what the parties have referred to as the voting constituency issue.

35First, the concerns that are raised by this issue logically flow from the application of the bright line test, a test which we have already found to be reasonable. Second, as the Board noted in its reconsideration decision, at no time prior to the representation vote did Sentry raise this issue.

36We also find that the Board in its reconsideration decisions reasonably rejected Sentry’s arguments on this issue because they were raised subsequent to the representation vote.

37For all of these reasons, Sentry’s application is dismissed.

COSTS

38I have endorsed the Record of Proceedings (as there was not an Application Record), “The application is dismissed for oral reasons given. Costs in the amount agreed at $5,000 all inclusive, are awarded to the Union payable by Sentry and there were no costs sought by the Board.”

___________________________ LEITCH J.