Labourers’ International Union of North America, Local 183 v. Allied Construction Employees Local 1030, 2019 ONSC 1592
CITATION: Labourers’ International Union of North America, Local 183 v. Allied Construction Employees Local 1030, 2019 ONSC 1592
DIVISIONAL COURT FILE NO.: 7/18 DATE: 20190311
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, WILTON-SIEGEL, and SHEARD JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Applicant
– and –
ALLIED CONSTRUCTION EMPLOYEES LOCAL 1030, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, HIGHCASTLE HOMES INC. and ONTARIO LABOUR RELATIONS BOARD
Respondents
COUNSEL:
Ronald N. Lebi, for the Applicant
Douglas J. Wray, for the Respondent Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America
Mark D. Contini, for the Respondent Highcastle Homes Inc.
Aaron Hart, for the Respondent Ontario Labour Relations Board
HEARD at Toronto: March 11, 2019
ORAL REASONS FOR JUDGMENT
SWINTON J. (Orally)
[1] The Ontario Labour Relations Board (the “Board”), on a displacement application brought by the respondent Carpenters Union, determined that two employees were in the bargaining unit on the application date because they were doing bargaining unit work. It also refused to apply the April Waterproofing doctrine to exclude one of the employees, Sergei Trubochkin, from participating in the representation vote. The Carpenters were successful in the representation vote. The Labourers’ Union, which lost its bargaining rights, seeks judicial review of the Board’s decision of July 31, 2017 and its Reconsideration Decision of October 20, 2017.
[2] The standard of review of the decisions is reasonableness.
[3] The applicant has not demonstrated that the decisions were unreasonable. The Board applied longstanding jurisprudence to the evidence in the case in determining whether Mr. Trubochkin was doing “bargaining unit work” on the application date.
[4] In the argument before the Court today, the applicant does not take issue with the finding that Mr. Trubochkin was doing bargaining unit work. However, the applicant argues that the Board made an error in principle in finding that Mr. Trubochkin was “in the bargaining unit” and eligible to vote. The applicant argues that where employees are represented by an incumbent union, any decision on continued representation should only be made by employees in the bargaining unit who were assigned to work by the incumbent union and are represented by the incumbent union. The applicant describes this as a fundamental democratic norm, recognized in the April Waterproofing decision in 1980 (1980 756), among others.
[5] The Board rejected this argument (see para. 33 of the Reconsideration Decision). The Board’s interpretation of the words “in the bargaining unit” focuses on the work being done by the employee. This is a reasonable interpretation of the relevant statutory provisions, consistent with the words of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A and the Board’s jurisprudence.
[6] The Board also reasonably refused to apply the April Waterproofing principle, given the evolution in the Board’s jurisprudence over many years (see for example, Forte Concrete Inc., 2016 10398). The Board has developed a more nuanced approach in determining if a person who is factually an employee in the bargaining unit should be excluded from participating in the representation determination.
[7] The Board does not exclude an employee from voting simply because he or she was employed in violation of a collective agreement. Rather, the Board looks at the conduct of the employer, the displacing union, the employee, and the displaced union and seeks to balance competing interests. As stated in Forte at para. 102:
The current day April Waterproofing principle strikes a balance that recognizes that if an employer inadvertently breaches the hiring or retention provisions of a collective agreement, the employees who are the subject of that breach and who have not acted in an improper way, should not be disqualified from being considered employees for purposes of termination and displacement applications.
That is a reasonable approach. It respects the language of the Act, and it is not for this Court to intervene.
[8] On the facts of this case, the Board found that there was no evidence of collusion or other suspicious circumstances between the employer, the Carpenters Union and Mr. Trubochkin (see paras. 36-38 of the Reconsideration Decision). The Board reasonably refused to exercise its discretion to apply the current interpretation of the April Waterproofing doctrine and held that Mr. Trubochkin was properly included in the list of employees for purposes of the displacement application.
[9] Accordingly, the application for judicial review is dismissed.
[10] I have endorsed the Applicant’s Application Record as follows: “This Application is dismissed for oral reasons delivered today. Costs of $5,000 to the employer and $5,000 to the Carpenters Union. The Board does not seek costs.”
SWINTON J.
I agree
WILTON-SIEGEL J.
I agree
SHEARD J.
Date of Reasons for Judgment: March 11, 2019
Date of Release: March 12, 2019
CITATION: Labourers’ International Union of North America, Local 183 v. Allied Construction Employees Local 1030, 2019 ONSC 1592
DIVISIONAL COURT FILE NO.: 7/18 DATE: 20190311
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, WILTON-SIEGEL, and SHEARD JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Applicant
– and –
ALLIED CONSTRUCTION EMPLOYEES LOCAL 1030, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, HIGHCASTLE HOMES INC. and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 11, 2019
Date of Release: March 12, 2019