COURT FILE NO.: 122/09

DATE: 20090520

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL -and- INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 ("Applicants") v. ONTARIO LABOUR RELATIONS BOARD -and- GRAHAM BROS. CONSTRUCTION LTD. ("Respondents')

BEFORE: J. WILSON, LEDERMAN, karakatsanis JJ.

COUNSEL: Sean McFarling and Virginia Nelder, for the Applicants Stephen Wahl, for the International Union of Operating Engineers, Local 793 Voy T. Stelmaszynski, for the Ontario Labour Relations Board David I. Wakely and Robert Bell, for Graham Bros. Construction Ltd

HEARD AT TORONTO: April 27, 2009

ENDORSEMENT

[1] The applicant Labourers’ International Union of North America, Ontario Provincial District Council (LIUNA), with the support of International Union of Operating Engineers, Local 793 (IUOE), seeks judicial review of an interim decision of the Ontario Labour Relations Board (OLRB or Board) relating to certifications sought for workers at the respondent Graham Bros. Construction Ltd. (Graham).

[2] There is no dispute that the standard of review that applies is reasonableness and the Board is entitled to considerable deference in interpreting its statute and making its findings.

[3] Section 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (LRA) governs a process for card-based certification of a trade union in the construction industry. The Legislature has set out an expeditious, highly prescriptive certification provisions to closely manage the certification process. The OLRB has considerable expertise and the legislation includes two privative clauses.

[4] Subsection 128.1(1) requires that the trade union give written notice to the Board and to the employer on the date the trade union delivers a copy of the application to the employer.

[5] Subsection 128.1(3) then requires the employer, upon receipt of notice of an application for certification, to provide the Board with the names of the employees to be included in the bargaining unit within two days.

[6] Further to s. 128.1(4), the Board shall determine based upon the information provided in the application and from the employer under subsection (3), the bargaining unit and the percentage of employees in the bargaining unit who are members of the trade union. Finally, the Board may hold a hearing if it considers it necessary in order to make a decision under this section.

[7] Both unions were seeking to certify workers at Graham: LIUNA over labourers, and IUOE over operating engineers. They each applied to the OLRB for a certificate pursuant to s. 128.1 of the LRA and intervened in each other's applications.

[8] Graham prepared a list of workers that fell into each prospective bargaining unit, but there were 24 workers who appeared on both lists. Graham took the position that given the large numbers of employees, the nature of the work and the number of job sites, it could not make a final determination with respect to those employees in the time permitted and they were cautious in light of the Board’s jurisprudence that an employer could not add names to the list. The Board made no finding of bad faith or adverse comment about Graham’s placing the same names on both lists.

[9] The two unions agreed that 13 of the 24 overlapping workers should be on the IUOE list, and the remaining 11 should be on the LIUNA list.

[10] IUOE subsequently withdrew its application, as it could not meet the 55% requirement for certification. LIUNA was in a position to seek automatic certification with the exclusion of the 13 workers on its list.

[11] The unions submit that it is not permissible under the legislation for the employer to file qualified lists. They argue, therefore, that they were entitled to treat the lists of names prepared by Graham as firm and unqualified. Accordingly, when they agreed to accept Graham’s representation that 13 people worked in the IUOE bargaining unit, they submit that Graham was a party to that agreement. They submit that because the OLRB does not permit a worker to be in 2 bargaining units on a given certification application filing date, and because parties are not permitted to resile from an agreement, Graham was bound by the agreement worked out between the 2 unions. Accordingly, the unions take the position that the employer was a party to the agreement that 13 workers would be removed from the LIUNA list provided by the employer under s.128.1(3). Graham disagreed and the matter went to the Board as a preliminary matter.

[12] The Board ruled at para. 32 that Graham had not been a party to the agreement between the two unions that 13 names should be on the IUOE Schedule and in any event the agreement became irrelevant when that application was withdrawn. The Board further concluded that Graham was not a party to an agreement that the 13 names should therefore be removed from the LIUNA Schedule A.

[13] The Board found at para. 33 that the unions were aware that there were overlapping names and that they knew that there was a qualified placement of 24 names on the lists. The Board noted that if Graham had made representations that those employees were in the IUOE bargaining unit, it had equally made the same representations that those employees were in the LIUNA bargaining unit. At para. 35, the Board found that “Given the absence of a firm position taken by Graham in respect of the names in issue, the IUOE and LIUNA could not, by stating their own position, create an agreement with Graham.”

[14] The Board further stated (at para. 35) that even if an agreement existed that the 13 names were on the IUOE list, the Board would not have found such agreement required that the 13 names be removed from the LIUNA list. Given that the other application had been withdrawn, those workers could not be in two bargaining units.

[15] The Board concluded (at para. 44) that the employer was required to provide an unqualified Schedule A, and that the Union was entitled to respond. If there is disagreement with respect to membership, the issue then proceeds through the Board’s status dispute process.

[16] The Board concluded that the employer had not been party to the unions’ agreement with respect to membership of the 24 workers that appeared on both Schedules. The Board found that the existence of overlapping names did not permit the unions to decide between them where to allocate those workers.

[17] We do not agree with the applicants’ submissions that the Board’s decision was contrary to its jurisprudence and was unreasonable. The OLRB did not decide that s.128.1(3) permits the employer to provide a qualified Schedule A. The Board ordered the employer to provide an unqualified Schedule A, in compliance with the legislation before the Union was required to take a position. Rather, the Board found that the employer had not been party to the unions’ agreement. The Board found that the existence of overlapping names was not an agreement to permit the unions to choose between them where to allocate those workers. A union is simply not permitted to choose to disregard names on the employer’s list absent agreement between them. If there was a dispute about the whether the workers were properly included in the bargaining unit for certification purposes, and no agreement is reached between the parties, the Board must determine the issues.

[18] The application is therefore dismissed. The Board does not seek costs. The parties agreed that $5,000 was an appropriate quantum. Graham shall have its costs fixed in the amount of $5,000.

J. Wilson J.

Lederman J.

Karakatsanis J.

Released: May 20, 2009