Alcan Aluminium Limited v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221, 2000 CanLII 6345

Alcan Aluminium Limited v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221

0039-99-R Alcan Aluminium Limited, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221, Responding Party v. United Steelworkers of America, Locals 7949, 343 and 8754; Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; International Association of Machinists and Aerospace Workers, Lodge 54, Intervenors.

0040-99-R Alcan Aluminium Limited, Applicant v. Millwright Local 1410, United Brotherhood of Carpenters and Joiners of America, Responding Party v. United Steelworkers of America, Locals 7949, 343 and 8754; International Association of Machinists and Aerospace Workers, Lodge 54; Millwright Regional Council of Ontario, Intervenors.

BEFORE: Harry Freedman, Vice-Chair.

APPEARANCES: Richard J. Nixon, Jim Richardson and Sven Spengemann for the applicant; A. M. Minsky, Q.C. for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 221 and the Ontario Pipe Trades Council; Harold. F. Caley for Millwright Local 1410 and Millwright Regional Council of Ontario; no one appearing for the United Steelworkers of America Locals 7949, 343 and 8754; Tim Hyatt for International Association of Machinists and Aerospace Workers, Lodge 54

DECISION OF THE BOARD; April 6, 2000

1The Board, by decision in this matter dated February 22, 2000, dealt with a number of preliminary issues and directed the production of documents and an exchange of information. Paragraph 24 of that decision stated:

The hearing for the purpose of dealing with the parties’ representations with respect to the legal and evidentiary burdens will take place on March 27, 2000. The hearings in these applications will continue as previously scheduled on April 17, 18, 19 and 20, 2000.

At the hearing before me on March 27, 2000, counsel for the responding parties in Board File No. 0039-99-R (the “U. A.”) made submissions with respect to the adequacy of the disclosure of the information provided by the applicant as required by the directions issued in the Board’s February 22 decision. During the course of submissions, I determined that the applicant had complied with the Board’s directions with respect to disclosure. Counsel for the U. A. had sought to have the applicant provide it with a list of the persons who held certificates of qualification for the plumbing and pipefitting trade under the Trades Qualification and Apprenticeship Act, R. S. O. 1990, c. T.17 so that the U. A. would be in a position to determine whether it represented any of the applicant’s employees on the application date as employees with those certificates of qualification might come within the bargaining unit the U. A. represents in the ICI sector of the construction industry. I reserved my decision on that request as it was an integral part of the issue as to which party has the legal and evidentiary burdens in this application.

2The applicant acknowledged that it had the legal and evidentiary burden to establish that it is a “non-construction employer” within the meaning of sections 126 and 127.2 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended, (the "Act"). At the conclusion of submissions, counsel for the applicant moved to have the Board take a view of its operations in Ontario. Counsel for the U. A. and counsel for the responding parties in Board File No. 0040-99-R (the “Millwrights”) advised that they were not in a position to consent to the applicant’s motion, but did not make any submissions in opposition to it. After receiving the applicant’s submissions, I was satisfied that a view was appropriate, particularly with respect to the “non-construction employer” issue. In the course of granting the motion, I indicated to the parties that I was of the opinion that the view was not a substitute for the evidence the parties might wish to adduce, but rather was to provide some context and framework for the testimony that the Board would receive in this proceeding. (See Sopinka and Lederman, The Law of Evidence in Canada, 2nd Ed., § 2.25; London General Omnibus Company Ltd. v. Lavell, [1901] 1 Ch. 135 at 138.)

3Counsel for the applicant submits that section 127.2 (2) of the Act creates two distinct conditions precedent before the applicant is entitled to the declaration that the two responding trade unions no longer represent any of its employees. The applicant must be a non-construction employer and it must not have employed a person in the construction industry represented by a responding trade union on the date the application was made.

4Section 127.2 (1) and (2) provide:

(1) This section applies with respect to a trade union that represents employees of a non-construction employer employed, or who may be employed, in the construction industry.

(2) On the application of a non-construction employer, the Board shall declare that a trade no longer represents the employees of the non-construction employer employed in the construction industry if, on the day the application is made, the non-construction employer does not employ any such employees represented by the trade union.

Counsel for the applicant points out that section 127.2 (1) uses the phrase “employees of a non-construction employer employed, or who may be employed…” while the phrase “may be employed” is absent from section 127.2 (2). Section 127.2 (1) has a temporal component to it that does not exist in 127.2 (2). He argues that section 127.2 operates prospectively so that future employees of the non-construction employer will not be represented by a responding trade union if the declaration sought is granted. Counsel submits that while the applicant has the burden of proving that it comes within the definition of “non-construction employer” only the trade unions who hold bargaining rights know who they represent, since representation in the construction industry is often synonymous with membership, and the responding trade unions are in the best position to know who their members are. Counsel argues that the phrase “represented by the trade union” at the end of section 127.2 (2) shifts the burden of proof to the responding parties to prove that they represented employees of the applicant who were employed in the construction industry on the date of the application. In effect, counsel submits the responding parties must assert and prove as a defence to the application that they represented employees of the applicant who were employed in the construction industry on the date of application was made. It is not up to the applicant to prove that it did not employ any such employees on that date.

5Counsel for the applicant provided a list of names of any employee of the applicant who may have from time to time engaged in work which the U.A. might characterise as work coming within the plumbing and pipefitting trade in the construction industry. It is up to the U.A., counsel submits, to prove whether any of those employees were represented by the U.A. on the application date, not up to the applicant to prove that they were not represented on that date since the responding parties are in the best position to know who they represent and who their members are. While counsel for applicant did concede that he was in a better position to adduce evidence about what work the employees were doing at the times material to the application, the legal burden remained with the responding parties to prove that they represented employees of the applicant who were employed in the construction industry on the application date.

6Counsel for the U.A. submitted that where the Act imposes either a legal or evidentiary burden on a party other than the applicant, it says so explicitly. Counsel referred to sections 1(5) and 69 (13) as examples where the Act imposes an evidentiary burden on a party other than the applicant, and to sections 66 (3) and 96 (5) where the Act shifts the legal burden from an applicant to another party. There is nothing comparable in section 127.2 (2) which should give rise to the Board shifting the legal burden to the responding parties. Counsel pointed out that the determination of whether an employee of the applicant was in the bargaining unit represented by the U.A. depended upon the nature of the work that person performed and whether that person held a certificate of qualification for the plumbing and pipefitting trade. He submitted that membership in the U.A. and being represented by the U.A. are two very different things. Counsel cited Esso Imperial Oil Ltd., [1998] O.L.R.D. 2286, Board File No. 2660-94-R, decision dated June 30, 1998, unreported, at ¶14. He argued that the U.A. is not in a position to know what work was being done by employees of the applicant at the times material to the application. It is therefore up to the applicant to establish that its employees were not working or employed in the construction industry at the times material to the application.

7Counsel for the Millwrights adopted all of the submissions made by counsel for the U.A. He also argued that the applicant chose the day to make its application. It was in the best position to gather the evidence in support of its application because it determined when the application would be filed. The responding parties can only react to the application after it is filed.

8Section 127.2 (2) sets out the conditions that must be satisfied before the Board is required to issue a declaration that the trade union responding to an application under that section no longer holds bargaining rights in respect of the applicant’s employees. The first condition which the applicant agrees it must establish is that it is a non-construction employer within the meaning of section 126 of the Act. That is, the applicant acknowledges that it must prove that it is either “not engaged in a business in the construction industry” or that its “only engagement in such a business is incidental to [its] primary business”. The second condition that must be met in order to obtain the declaration sought is that the applicant did not employ any employees in the construction industry represented by the responding trade unions on the day the application was made. While it is clear that the responding parties know the identities of their members better than the applicant, whether an employee in the construction industry is represented by a trade union depends to a great extent upon the nature of the work in which that employee is employed. An employee in the construction industry might be a member of two or three different trade unions at any one time. Who represents that employee in his or her relationship with an employer at any specific point in time is often a function of the work that employee is performing because the nature of that employee’s work will be a significant factor in determining the bargaining unit within which that employee comes. The trade union that holds bargaining rights for that bargaining unit is the trade union who represents that employee.

9In an application under section 127.2 (2) it is the applicant who, in my opinion, must establish the existence of the necessary conditions upon which the Board must act to grant the declaration sought. If that were not the case, an applicant could simply make an application, prove it was a non-construction employer and then require the responding trade union to prove that the applicant employed someone in the construction industry represented by the responding trade union on the application date. There is nothing in section 127.2 that would oblige an applicant to permit a responding trade union access to the applicant’s premises nor would an applicant be required to provide any information about its employees to the responding trade union, in the absence of a Board order. As counsel for the Millwrights pointed out, the applicant in a section 127.2 proceeding controls the application date. It decides what circumstances exist at the moment it files the application. The applicant is in control of the workplace and can determine who will be employed and in what capacity they will be employed (subject to the unfair labour practice provisions of the Act). It is the applicant who seeks the declaration under section 127.2 (2) of the Act. It seems to me that it should be up to the applicant to establish its entitlement to that declaration by proving that all of the necessary conditions for a declaration were present on the day the application was made.

10I have determined that the applicant has the legal burden of establishing that all of the necessary elements were in existence on the application date in order to obtain the declaration sought. Nevertheless, the applicant has already provided the responding parties with a list of the names of its employees who may have been engaged in either or both millwright work or plumbing and pipefitting work around the date of the application. The applicant has also asserted, and the responding parties have accepted, that there were no other employees of the applicant who were employed on the application date that could have done such work. Thus, it is not necessary for the applicant to call evidence to prove that all of its employees were not employed in the construction industry on the application date. The responding parties cannot, in other words, after the evidence is completed, take the position that the applicant has failed to prove, for example, that the employees in its accounting department or employees who normally do shipping and receiving, were not employed in the construction industry on the application date so therefore the applicant has failed to discharge the onus of proof under section 127.2.

11The applicant also submitted, in the alternative, that while it would be prepared to adduce the necessary evidence with respect to the work that its employees performed, the legal burden of establishing that such work is work covered by the construction industry collective agreements by which the responding parties are bound falls on the responding parties. In my opinion, it is up to the applicant to prove all of the elements necessary to determine the nature of the work in which its employees were engaged at the times material to the application. How that work is characterized is an element of the case the applicant must establish. The characterization of that work or the characterization of their employment is a mixed legal and factual determination that the Board must make after the facts necessary for that determination have been established initially, at least, by the applicant. Thus, I do not accept that the responding parties have the burden of proving that the work done by those employees was work coming within their collective agreements. Simply put, it is for the applicant to persuade the Board that none of its employees were employed in the construction industry on the application date, and if they were employed by the applicant in the construction industry on that date, it is for the applicant to persuade the Board that they were not employed under the collective agreements by the which the responding parties are bound and were therefore not represented by either of the responding parties.

12The view requested by the applicant and directed by the Board will take place at the applicant’s premises in Kingston and Brockville on Monday, April 17, in Etobicoke on Tuesday, April 18 and in Bracebridge on Wednesday April 19. In accordance with the parties’ agreement, the hearing previously scheduled for Thursday, April 20 is hereby adjourned. The hearings in these applications will continue on November 20, December 12, 13, 18, 19 and 20, 2000.

“Harry Freedman”

for the Board