Union of North America, 2022 ONSC 2313
DIVISIONAL COURT FILE NO.: 502/21
DATE: 20220414
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, BACKHOUSE AND MCCARTHY JJ.
BETWEEN:
ELECTRICAL POWER SYSTEMS CONSTRUCTION ASSOCIATION and BLACK AND MCDONALD LTD.
Applicants
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 506 and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
Stephen McArthur, for the Applicant
Joshua Mandryk and Keerthana Sivapatham for the Respondent Labourers’ International Union of North America, Local 506
Andrea Bowker and Aaron Hart, for the Respondent the Ontario Labour Relations Board
HEARD at Toronto by videoconference:
April 6, 2022
REASONS ON APPLICATION FOR JUDICIAL REVIEW
MCCARTHY J.
Overview
[1] The Applicants, Electrical Power Systems Construction Association (“EPSCA”) and Black and McDonald Ltd. (“the Employer”) seek judicial review of two decisions of the Vice-Chair Maurice A. Green (“the Vice-Chair”) of the Ontario Labour Relations Board (the “Board”).
[2] The Respondents are the Labourers’ International Union of North America, Local 506 (“the Union”) and the Board.
[3] The Employer is engaged to perform work at the Pickering and Darlington Nuclear Generating Stations (“the site”). EPSCA is responsible for negotiating and administering construction trade collective agreements on behalf of the Employer. The Union is a trade union within the meaning of ss. 1(1) and 126(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the “Act”).
[4] The Employer and the Union are bound to a collective bargaining agreement (“the CBA”) which applies to the Employer’s construction operations on the site.
[5] Section 114(1) of the Act conveys exclusive jurisdiction to the Board to determine disputes referred to it under the Act.
The Decisions Under Review
[6] In the First Decision, dated April 14, 2021, the Board determined that the Employer had violated the CBA when it laid off a foreman, Calvin Fedyk (“the Grievor”), due to a shortage of work at the site. The Board held that the CBA required the Employer to lay off foremen in reverse order of seniority in accordance with Article 11.01 of the CBA.
[7] In the Second Decision, on May 19, 2021, the Board denied the Employer’s request for reconsideration.
[8] The Applicant Employer now argues that both decisions of the Board are unreasonable and asks that they be quashed. The Respondent Union asks that the application be dismissed, or if granted, that the matter be remitted to the same panel of the Board.
[9] For the reasons that follow, the application is dismissed.
The CBA
[10] The Board’s decisions centred on the interpretation of Articles 11.01, 11.02(a) and (b) and
12.03 of the CBA.
[11] Those Articles read as follows:
ARTICLE 11 – PROJECT LAYOFF PROCEDURE
11.01 During staff reduction the Employer shall layoff the last employee hired, provided the remaining employees are able to perform the work currently underway.
11.02 Subject to Article 12.10, the Employer shall have the right to move foremen from construction site to construction site.
When a requirement for foremen no longer exists, the treatment of foremen shall be as follows:
(a) Foremen who are transferred into, or hired as a Foreman at an EPSCA construction site as a foreman shall be laid off as a foreman or transferred out to another construction site as a foreman.
(b) An employee who has been promoted to the foreman level by the Employer during the course of his employment on an EPSCA construction site, shall not be subject to (a) above and will be reduced to a working position at such site. For layoff purposes, the employee will then be subject to Article 11.01.
ARTICLE 12 -FOREMEN
12.03 The selection and retention of foremen will be the responsibility of the Employers. When making appointments to the foreman level, the Employer will give consideration to those journeymen they presently employ. The appointment of foremen in charge of composite or mixed crews will take into account the nature of the work to be done.
Agreed Set of Facts
[12] The parties filed an Agreed Set of Facts, the salient portions of which may be summarized as follows:
The CBA was in effect at the time of the lay off in question.
The Grievor was name-hired by the Employer as a labour foreman and was dispatched to the site on or about November 12, 2018.
The Grievor was laid off due to a shortage of work on or about January 6, 2021. At that time, the Employer employed 5 foremen in the bargaining unit, three of whom (including the Grievor) were name-hired as foremen. The other two were promoted to the rank of foremen. All but one had less seniority than the Grievor.
The Union filed a grievance on January 7, 2021, challenging the layoff as improper and in violation of the seniority layoff provision of the CBA.
The Union prepares lists setting out the seniority of its members for the respective employers.
What is now Article 11.02 of the CBA is rooted in a Union proposal designed to preclude an employer from name hiring a foreman, and then laying off that foreman to a bargaining unit working position. This alleged practice was viewed by the
Union as being a method to circumvent limits on name hiring working labourers. The proposed amendment therein was agreed to by the EPSCA in 1992.
- There is no relevant past practice at the site with respect to the layoff of foremen.
The Standard of Review and General Principles
[13] The standard of review applicable to this judicial review is that of reasonableness: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 17, 53 and 69 (“Vavilov”). Reasonableness is concerned with justification, transparency and intelligibility; a reasonable decision contains a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: see Vavilov, at paras. 73-75, 99 and 102-107.
[14] In reviewing a Board, judges should remain mindful of its expertise. Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that “the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction” (Maystar General Contractors Inc.
v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008]
O.J. No. 1353, at para. 42).
[15] The interpretation of collective agreements is at the very heart of the Board’s jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements: see Ottawa Hospital v. OPSEU, 2017 ONSC 5501, at para. 2.
Analysis
The First Decision
[16] I find the Board’s interpretation of the relevant articles of the CBA to be reasonable.
[17] The Board properly recognized that seniority is one of the most important rights negotiated by unions. In doing so, it properly canvassed the leading authorities and cited the Ontario Court of Appeal’s decision in Lakeport Brewing Corp. v. Teamsters Local Union 938, [2005]
O.J. No. 3488 (Ont. C.A.), which recognized the long-established principle of labour law that seniority can only be affected or altered by express language in a governing agreement (at para. 56).
[18] The Board went on to consider similar pronouncements from its own body of decisions. In
Re Northern Telecom Canada Ltd. v. United Automobile Workers, Local 1525, [1983]
O.L.A.A. No. 107, 1983 4850 (ON LA), 9 L.A.C. (3d) 224, Arbitrator M.G. Picher stated at p. 229:
Canadian arbitrators have consistently recognized the critical value of seniority rights to employees. They have acknowledged a general presumption in favour of seniority rights: absent a clear and express restriction of seniority rights, a collective agreement that confers
individual rights based on seniority should be construed so that doubtful language is interpreted in a way that preserves and enhances those rights.
[19] The Board framed the question at issue as: whether the wording of Article 11.02(a)(b) in the CBA met the high standard required to confiscate the seniority rights previously enjoyed by foremen and found in the CBA at Article 11.01?
[20] The Board concluded that it did not.
[21] The Board considered both the text of Article 11.02(a)(b) and the context in which it was introduced into the CBA. The Board concluded that it would create a distorted interpretation to suggest that the Article served to remove seniority rights. Article 11.02(a)(b) was intended to provide extra protection during a lay-off to those foremen who were promoted from within the bargaining unit, as opposed to those who were hired directly from the union hall. Article 11.02(a)(b) did not contain sufficiently clear and express language to confiscate the enshrined right of seniority found in Article 11.01. As the Respondent Union pointed out, the reference to seniority rights at the end of Article 11.02(b) is designed to deal with the possibility that the transfer of a foreman to a working position could create a surplus of employees in working positions. In such an event layoffs are to occur in accordance with Article 11.01.
[22] The Board noted that throughout the CBA the term “all employees” or equivalent was used on multiple occasions; and this term patently included all of the foremen in the bargaining unit. Article 11.01 included the terms “last employee” and “remaining employees”. There was no explicit language anywhere in the CBA that could reasonably be interpreted as depriving foremen of the seniority treatment confirmed by Article 11.01 and enjoyed by all employees.
[23] The Board also addressed the applicability of the expressio unius est exclusion alterius maxim and the implications of the Article 12.03 management right to the “retention” of foremen. Specifically, the Vice-Chair considered whether the use of the word “retention” granted the unrestricted right to the Employer to lay-off foremen without regard to seniority. As part of its analysis, the Board distinguished the “IBEW” decisions relied upon by the Employer. The Board grappled with a decision of Vice-Chair McKee in I.B.E.W. Construction Council of Ontario v. Comstock International Ltd., 2004 8155 (ON LRB) [“Comstock”] wherein a governing labour agreement was found to have contained language which served to separate the rights of foremen and sub-foremen from those of tradesmen and apprentices. After reviewing the salient portion of that agreement, the Board concluded that the Comstock decision involved the lay-off of tradesmen electricians rather than foremen; as well, the structure and content of the IBEW agreement in the Comstock case was very different from the CBA governing the labour relations before this Board.
[24] After careful analysis, the Board concluded that the powers granted to the Employer in Article 12.03 are not absolute; they remain subject to the substantive rights found elsewhere in the CBA, most notably the seniority rights afforded to “all employees” in Article 11.01.
[25] I find this to be a reasonable interpretation of the CBA.
[26] Finally, the Board’s reasons are both transparent and intelligible. They demonstrate a sound grasp of the law, the content and context of the CBA, and the dynamics of labour relations unique to the construction industry. The reasons contain a rational chain of analysis leading from the facts to the conclusions arrived at.
The Second Decision
[27] The Second Decision was similarly reasonable. The Board again rendered a transparent and intelligible decision. The reasons, while briefer than those in the First Decision, nevertheless squarely addressed the Applicant’s arguments touching upon the expressio unius maxim, the implications of the management rights to retain foremen found in Article 12.03, and the differential treatment afforded to name hired foremen versus those promoted internally. The Board again brought to bear its expertise in labour relations and in the subspeciality of collective agreement interpretation in the construction context.
Disposition
[28] For the foregoing reasons, the application is dismissed with costs. In line with the agreement of the parties, the Applicant EPSCA shall pay the Respondent Union the sum of $10,000 for costs, fixed and payable forthwith.
McCarthy J.
Released: April 14, 2022
I agree
I agree
Sachs J.
CORRECTION NOTICE
Corrected decision: the text of the original judgment was corrected on April 29, 2022 and the description of the correction is appended.
In the style of proceedings:
(a) Counsel for the Respondent, Labourers’ International Union of North America, Local 506, has been corrected as Joshua Mandryk and Keerthana Sivapatham; and
(b)Counsel for the Ontario Labour Relations Board has been corrected as Andrea Bowker and Aaron Hart.
Electrical Power Systems Construction Association. Labourers’ International Union of North
America, 2022 ONSC 2313 Divisional Court File No. 502/21
Date: 20220414
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ELECTRICAL POWER SYSTEMS CONSTRUCTION ASSOCIATION and BLACK AND MCDONALD LTD.
Applicants
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 506 and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
McCarthy J.
Released: April 14, 2022